Massachusetts Real Estate Lawyer Blog

Massachusetts Court Rules Plaintiffs Have Easement Over Neighbors’ Property to Access Beach

Published on: March 7, 2018 | by Pulgini & Norton, LLP

In Massachusetts, beach access can be a significant feature of a residential real estate property. In a March 5, 2018 case, the primary issue before the Appeals Court of Massachusetts concerned the ownership of, and access to, a beach situated near the parties’ homes. The Land Court had ruled that the plaintiffs held easement rights to access and use the beach by a 1929 deed and by implication. The defendants appealed the Land Court decision to the higher court.

An appurtenant easement allows for the use of a servient parcel of land in order to benefit a dominant parcel of land and the possessors of that land. Appurtenant easements attach to and run with the land and consequently benefit subsequent possessors of that property as well. If the appurtenant easement is expressly granted by deed, the deed must only reasonably identify the servient land, the dominant land, and the easement itself.

In the case, the 1929 deed expressly granted easement rights to the owner and subsequent owners. It identified the easement as granting recreational use of the beach and shore located on the opposite end of the servient estate, currently owned by the defendants. The defendants argued, however, that the plaintiffs were outside the record title chain and were not grantees of the easement. The appeals court stated that appurtenant easements are not required to be recorded in the grantees’ title, and the successors of the dominant estate need not be specifically identified at the time of conveyance. Instead, it is only required that the dominant and servient estates be reasonably ascertainable. Since the plaintiffs possessed property comprising the dominant estate at the time of the May 1929 deed, therefore, they held easement rights to use the beach.

Massachusetts Homeowner Appeals Zoning Decision Allowing Town’s Development Project

Published on: February 26, 2018 | by Pulgini & Norton, LLP

If you are opposed to a local government decision regarding land use, you may be able to bring an appeal if you are an aggrieved person as defined by law. In a February 16, 2018 Massachusetts land use case, the Land Court considered whether a plaintiff had legal standing to challenge a local zoning board decision that authorized the development of a vacant lot abutting his backyard.

In the case, the local planning board granted a special permit to the town authorizing the construction of a group home for veterans who are either homeless or at risk of becoming homeless, using the town’s property pursuant to a bylaw providing for affordable housing. The plaintiff, who owned abutting property, appealed the decision, contending that the board exceeded its authority in granting the special permit. The defendants asserted that the plaintiff lacked standing to challenge the special permit.

In Massachusetts, people with abutting land are entitled to notice of a zoning board’s hearings and have a rebuttable presumption that they are aggrieved persons. Nevertheless, abutters have the burden of establishing standing so that, if a defendant offers enough evidence to rebut the presumption, the plaintiff must prove standing by putting forth credible and direct evidence of a particularized injury. The analysis is whether the plaintiffs have sufficient evidence to show they will be injured or harmed by proposed changes to an abutting property, rather than whether they will be merely affected by the changes. One way a defendant can rebut the presumption is by showing that the claims of injuries raised by the plaintiff are not interests that the Zoning Act is intended to protect.

Massachusetts Property Owners Seek Approval of Plan Through Adequacy Regulations

Published on: February 19, 2018 | by Pulgini & Norton, LLP

In order to make certain improvements to your property, you may need approval from a local planning board. If the process does not end in a favorable decision, you can appeal. A February, 1, 2018 real estate case before the Land Court arose out of the plaintiffs’ efforts to develop their Massachusetts property. They had applied to the town’s planning board, seeking approval of an improvement plan. When the board denied their application, the plaintiffs appealed. The case was eventually remanded back to the Land Court by the Massachusetts Court of Appeals, which reversed the ruling as to one of the plaintiffs’ claims. Consequently, the matter was before the Land Court for a second time.

In the case, the only remaining issue to be resolved was the plaintiffs’ certiorari action. Certiorari is available if the proceeding is judicial or quasi-judicial, there are no other reasonably adequate remedies, and a substantial injury or injustice arose from the proceeding under review. For the Land Court, the matter for review was the planning board’s decision. The question for the court was whether or not there were grounds that a reasonable person would find proper to support the board’s decision.

The plaintiffs in the case sought approval of a plan that would allow their property to have adequate frontage on a certain way. The application was submitted through the adequate access review process, which is used so that a way or street can be improved, without having to obtain definitive subdivision approval. The limited circumstances in which these regulations may be applied require the way to meet the definition of a street under the by-laws, and the lot that has frontage on the way must have been in existence before subdivision control was adopted. The plaintiffs were therefore required to demonstrate that both the way and the lot met the requirements provided.

Massachusetts Property Owner Brings Action Against Subdivision Developer and Neighbors Over Easement Rights

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

It may seem unusual that, despite owning a parcel of property, some non-owners may have a limited right to use a portion of it. One of the legal devices to convey such use is called an easement. In a December 20, 2017 case, a plaintiff filed an action with the Massachusetts Land Court to remove alleged clouds on the title to his property. In two of the counts in his complaint, the plaintiff sought to establish that the defendants did not have the right or benefit of an easement over his land. The parties’ lots were part of a subdivision they purchased from the developer.

The parties filed cross-motions for summary judgment on the issues before the Land Court. The plaintiff argued that the defendants had no right to use areas of his land that were designated as “cart paths” in the recorded deeds and subdivision plans. The plaintiff also contended that the developer had no right to a private driveway easement that was referenced in the deeds as crossing his land.

The court first looked at the language of the deeds and other recorded documents to determine whether the defendants had rights over the cart paths on the plaintiff’s land. While noting that the documents did depict the cart paths, the court explained that none of the deeds mentioned any rights that were granted or reserved over any of them. The court also pointed out that there were no facts to suggest that easements over the cart paths arose by implication, common scheme, or necessity. Accordingly, the court ruled in favor of the plaintiff with respect to the cart paths, finding that the defendants did not have any right to use the cart paths on his land.

Massachusetts Court Upholds Town’s Order Prohibiting Landowner’s Private Helicopter Landing Area

Published on: February 5, 2018 | by Pulgini & Norton, LLP

Many people consult with a Massachusetts land use attorney before engaging in a particular activity on their residential property in order to understand relevant zoning restrictions. While zoning is generally determined by the local government, in some cases, federal or state law may have an effect, as illustrated in a January 8, 2018 case before the Supreme Judicial Court of Massachusetts.

The plaintiff in the case was a licensed helicopter pilot. He used his helicopter to travel to his various family homes and business appointments, but not for any commercial purpose. Following the plaintiff’s request for a private helicopter landing area, the Federal Aviation Administration recognized his property as a licensed private use heliport. The town building inspector issued an enforcement order, stating that the plaintiff was in violation of the local bylaws, since a heliport was not allowed in any zoning district of the town. The plaintiff filed an appeal, which was denied by the zoning board. The land court reversed the decision, and the Supreme Judicial Court of Massachusetts granted direct appellate review of the matter.

Pursuant to Massachusetts statutes, before a town acquires property to construct or improve an airport or restricted landing area, it must first apply to the Department of Transportation for approval of the site. However, a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior approval; the landowner must simply inform the Department and ensure that the area is safely built and maintained in order not to endanger the public. A later amendment to the statute provided cities and towns with the authority to enact rules and regulations, with Department approval, governing the use and operation of aircraft.

Massachusetts Adverse Possession Claim Defeated After Record Owner Files Petition to Register Title

Published on: January 23, 2018 | by Pulgini & Norton, LLP

To succeed in a Massachusetts adverse possession claim, the claimant must prove all of the elements required to establish his or her claim to a particular portion of land. In a January 19, 2018 case, the land court considered a claim of adverse possession by an abutting landowner and claims to confirm title initially filed by a mobile home park company and followed by a substitute petitioner. The history of the legal proceedings made it difficult to determine whether the landowner had established continuous possession of the area for the requisite period.

The mobile home company had commenced the original action in 1995, seeking to confirm title. That action remained pending until, due to a dispute concerning whether the landowner had been properly served with the petition, special notice was sent to the landowner in 2006. The landowner filed an answer, claiming title to a portion of the land based on adverse possession. His claim was based on acts of adverse possession beginning in 1985, after he purchased his property. The action continued to remain pending until 2018, when it came before the land court.

In Massachusetts, adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for a 20-year period. The burden is on the party claiming adverse possession to provide clear proof of each element. In the case, the landowner alleged that he staked a perimeter around his property, which included the land at issue, when he purchased the property in 1985. He also planted trees in that area to be sold as Christmas trees, cleared land, allowed hunters to use the property, informed others the land was his, and posted no trespassing signs. His activities continued to the time of the land court’s decision.

Massachusetts Homeowner Succeeds in Defending Against Foreclosure Summary Process

Published on: January 16, 2018 | by Pulgini & Norton, LLP

Many foreclosure actions are complex, making them difficult to defend without assistance from a Massachusetts real estate attorney. In a January 10, 2018 case before the Appeals Court of Massachusetts, a homeowner and her son were the defendants in a foreclosure summary process complaint brought by the mortgage company. Although the defendants filed an answer pro se, the homeowner obtained counsel soon thereafter, who filed a new answer and counterclaims against the mortgage company.

Following discovery, the mortgage company moved for summary judgment, contending that it had superior right and title to the property and that, due to the homeowner’s unsuccessful challenge of the validity of the foreclosure in 2011, her counterclaims were barred by res judicata. The homeowner also moved for summary judgment, asserting that the mortgage company failed to provide proper notice of default. Her motion was allowed, and judgment was entered.

The mortgage company then filed a notice of appeal, which was dismissed as premature due to the unresolved claims against the son. After the mortgage company was granted a default judgment against the son, it filed a motion for reconsideration of its notice of appeal. The appellate division denied it; however, its order allowed the mortgage company to file a new notice of appeal and thereafter perfect its appeal. After the mortgage company filed the motions, the appellate division vacated the judgment for possession for the homeowner and entered judgment in favor of the mortgage company. The homeowner subsequently appealed that decision.

Massachusetts Landowners File Protest Petition in Opposition to Rezoning Decision

Published on: January 9, 2018 | by Pulgini & Norton, LLP

Many property owners become concerned when areas in their neighborhood undergo zoning changes and are used for purposes not originally intended. The landowners in a January 5, 2018 Massachusetts land use case took action after learning of zoning changes in their neighborhood.

In the case, the city council had approved a zoning amendment to rezone land owned by the defendants. The city council had also granted the defendants a special permit approving their proposed development of the land. The plaintiffs were nearby property owners opposed to the development and zoning change of land in their neighborhood. In response to a rezoning decision made by the city council, they submitted a written protest to the city clerk.

Pursuant to Massachusetts law, if the requirements of the protest statute are met, the number of votes of the city council necessary to pass a zoning amendment is increased from two-thirds to three-fourths. The plaintiffs in the case argued that their protest petition met the statutory requirements needed to require additional votes from members of the city council to approve the change.

Massachusetts Property Owners Win Action to Enforce Agreement for Sale of Land Parcel

Published on: January 2, 2018 | by Pulgini & Norton, LLP

Agreements concerning your property can be enforced by the court if they are not performed by the other party. In a December 15, 2017 case, the Appeals Court of Massachusetts decided a dispute between the plaintiffs and a company that owned the neighboring property. The Massachusetts real estate case involved an agreement providing that the plaintiffs would grant an easement to the company in exchange for a section of the company’s land. The plaintiffs subsequently brought suit to enforce the agreement.

The agreement at issue stated that the plaintiffs would convey an easement to the defendants and allow the defendants to construct and maintain a retaining wall along the rear of the plaintiffs’ property. The plaintiffs also agreed to arrange for another neighbor to execute a similar easement. In exchange, the agreement provided that the plaintiffs would purchase a portion of the defendants’ lot that would square off the plaintiffs’ L-shaped lot. The land transfer, however, was conditioned on whether it would adversely affect drainage resulting from the defendants’ proposed expansion.

The defendants argued that the agreement failed to provide many essential aspects of the parties’ agreement, and therefore, enforcement was barred by the Statute of Frauds. The court agreed that the agreement was poorly constructed, since it lacked a purchase price for the land, it did not precisely define the location of the parcel, it incorrectly identified the owner of the parcel, and it did not contain a closing date. Furthermore, the description of the parcel that was included did not seem to be what the parties intended. However, the court held that since the plaintiffs performed their obligations under the agreement, and they relied on the defendants’ promise to convey the parcel, the matter was outside the Statute of Frauds.

Massachusetts Land Court Finds No Right of Way Easement Over Neighboring Land

Published on: December 26, 2017 | by Pulgini & Norton, LLP

Some parcels of land are subject to an easement, which allows people other than the owner to use the owner’s property for a particular purpose. If you believe you have an easement over land in Massachusetts, you can petition the land court for a declaratory judgment outlining your rights. In an August 9, 2017 Massachusetts property case, the plaintiffs sought a declaratory judgment in land court, arguing that they were the beneficiaries of two right of way easements across the neighboring landowner’s property.

In the case, the plaintiffs claimed they had the benefit of existing rights of way of record. The plaintiffs argued that the original deed to the defendant’s land conveying two parcels of land contained two easements, which they alleged actually existed as one continuous right of way. Since the plaintiffs owned the lands at both ends of the alleged continuous right of way, they contended that they were entitled to use and improve the right of way to access their land.

The land court first looked at the original deeds conveying the parties’ respective lots to determine whether an easement had been reserved. In Massachusetts, when an easement has been reserved in the grant of a parcel of land, the easement must be construed with reference to the deed and the circumstances when it was made. A reservation in a deed can only vest the grantor with a new right or interest. If the deed did attempt to vest a new right in a stranger to the deed, it would be void.