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Boundary disputes between neighbors are not uncommon, and issues regarding adverse possession of bordering property may arise after many years have passed. The Appeals Court of Massachusetts reviewed such a dispute in the case of Paris v. Morris (Mass. App. Ct. Aug. 3, 2016). In Paris, the plaintiff brought a complaint against his neighbor, alleging trespass and seeking declaratory relief with regard to a fence that encroached on his land. The land court judge, however, found that the defendant had acquired the strip of land at issue through adverse possession. The plaintiff subsequently appealed that ruling to the higher court.garden fence

In Paris, a hedge approximately three feet in width and four feet high straddled the boundary at issue from at least 1960 to 1999. The hedge was maintained exclusively by the defendant and his late father until 1999, when it was removed, and a six-foot-high wooden fence was installed. Between 1999 and 2007, neither the plaintiff nor the prior occupants of the plaintiff’s property sought the removal of the fence, which was built on the plaintiff’s property.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes his or her non-permissive use of the property, which is actual, open, notorious, exclusive, and adverse for a period of 20 years. The lower court found that, as a result of the exclusive maintenance of the hedge by the defendant and his father, and in addition to the years in which the fence was present, the 20-year statutory period had been met. On appeal, the plaintiff argued that the mere maintenance of the branches of a hedge on a boundary line that overhangs neighboring property cannot amount to an act of exclusion that is sufficient to meet the requirements of adverse possession, at least with regard to the property underneath the branches.

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In a newly issued opinion, the Supreme Judicial Court of Massachusetts discussed whether the federal government or the Massachusetts Land Court had proper jurisdiction in an easement dispute involving a railroad. In Murray v. Dep’t of Conservation & Recreation (Mass. Aug. 4, 2016), the plaintiffs brought an action to quiet title, claiming that a railroad easement across portions of their lands was abandoned after the United States Railway Association (USRA) transferred rail lines from eight bankrupt rail carriers pursuant to the Regional Rail Reorganization Act of 1973 (the Act). Since the rail line over the easement on the plaintiffs’ lands was not part of the reorganization, the plaintiffs contended that it was abandoned by virtue of its non-designation in the USRA’s final system plan. The Land Court concluded that the Federal Surface Transportation Board (STB) had exclusive and primary jurisdiction over the matter and that a certificate of abandonment from the STB was necessary before a state court could exercise jurisdiction over the parties’ dispute. The plaintiffs subsequently appealed the issue.railroad tracks

Generally, before any rail line may be abandoned, a certificate of abandonment must be obtained from the appropriate federal agency. Federal law expressly confers exclusive authority to regulate the abandonment of rail lines, with certain exceptions, on the STB. One of the exceptions to this exclusive authority developed when, in the early 1970s, eight major railroads entered into bankruptcy reorganization proceedings. Congress enacted the 1973 Act establishing the USRA and charged it with preparing a final system plan for restructuring the railroads into a financially self-sustaining system. The 1973 Act also authorized the abandonment of rail properties and easements, notwithstanding any provision of state law, the Constitution, or any administrative or judiciary decision.

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In a recent case, a Massachusetts Land Court was presented with a motion to vacate judgment to prevent the foreclosure action and sale of property owned by the defendants. In Town of Russell v. Barlow (Mass. Land Ct. July 13, 2016), the town filed a complaint in 2003 to foreclose on the property at issue as the result of a tax lien. In 2008, a judgment was entered foreclosing the defendants’ right of redemption. The defendants filed their petition to vacate in 2014, contending that the tax taking and foreclosure were invalid because the town violated their due process rights. The court ultimately granted the defendants’ motion and vacated the judgment.house

Massachusetts law generally requires a petition to vacate a decree of foreclosure to be filed within one year of the entry of the decree. The judgment may be vacated within one year if the court determines it is required to accomplish justice. However, the strict application of the one-year limitation may be excused when there has been a denial of due process, which is typically based on a violation of due process rights and the property owner’s ability to participate in the original litigation. Due process, in turn, requires notice of a petition to foreclose by certified mail, but it does not require actual notice.

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In a recent opinion, the Appeals Court of Massachusetts reviewed a zoning appeal involving the merger of two adjacent lots. In Gallagher v. Zoning Bd. of Appeals of Falmouth (Mass. App. Ct. July 25, 2016), the plaintiff appealed a summary judgment order by the land court, which affirmed a decision of the zoning board of appeals merging the separately maintained lots for zoning purposes. Ultimately, the appeals court affirmed thatgarage determination as well.

In Gallagher, the two adjacent lots at issue were included in a subdivision plan and conveyed separately to the plaintiff and the plaintiff’s husband. The plaintiff’s house was located on one of the lots, while the other lot, owned by her husband, contained the carport. In 2000, the plaintiff applied to the city planning board to combine the lots and was granted an endorsement. However, the plan was never recorded. Until that time, the house lot and the carport lot remained in separate ownership by the plaintiff and her husband, respectively. The plaintiff’s husband conveyed the carport lot to the plaintiff before his death later that year. In 2013, the plaintiff requested a zoning determination from the building commissioner that the carport lot was a separate buildable lot, exempt from the increased area requirements of a 1993 zoning amendment. The commissioner found that the lots had merged, a decision that was affirmed by the zoning board of appeals and the land court. Specifically, the land court ruled that when the two lots came into the plaintiff’s common ownership, they lost grandfather protection and merged for zoning purposes.

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The Massachusetts Land Court issued an opinion regarding a zoning appeal in Reeve v. Godfrey (Mass. Land Ct. July 12, 2016). The building commissioner issued a building permit for the construction of a single-family home in the same location as a former dwelling. The plaintiffs and other neighboring homeowners appealed the permit to the zoning board, arguing that the lot did not have a sufficient area to qualify it as a buildable lot. The zoning board affirmed the permit, and the matter was appealed to the land court.zoning permit

In Reeve, the property at issue is accessible by a private right of way that branches off a larger avenue and continues onto the property. The primary question for the land court was whether an area consisting of a private way should be included in the lot size. Significantly, the property was subject to zoning regulations that required at least 90,000 square feet for a lot to be buildable. As a result, if that portion of the right of way is excluded from the lot area calculation, the lot would be considered undersized. However, if the private way is included, the lot would have sufficient area to be buildable.

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If certain due process protections were not provided during foreclosure proceedings, this may be grounds to vacate a judgment of foreclosure. In Town of Brewster v. Owners Unknown (Mass. Land Ct. July 8, 2016), the Massachusetts Land Court reviewed a petition to vacate a final judgment of foreclosure of a tax lien, based on lack of notice. The judgment had been entered over 25 years earlier, when the town obtained a 1991 judgment to foreclose its tax lien against “unknown owners.” The petitioners in Town of Brewster claimed a title interest in the property as heirs of the owner, citing an 1851 deed. The petitioners also asserted that the lack of notice to the heirs violated due process, thus entitling them to vacate the judgment and redeem the property by paying any taxes properly due.foreclosure proceeding

The case was originally commenced in 1986, after the town sought unpaid taxes on the property. The land court examiner filed a title report identifying three persons as parties entitled to notice and requested current addresses from the town. Two of the parties were given notice via certified mail. However, there was no return receipt from one of the parties, despite two attempts to provide notice. The town also published notice of the case in the local newspaper. In 1991, the court issued a final judgment, ordering that all rights of redemption were forever foreclosed and barred. In 2015, the petitioner requested that the judgment be vacated. The town argued that even if a due process violation occurred, the petitioners waited too long after learning of the foreclosure judgment to bring the action, since he had first learned of it in 2012.

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In a recent decision, the Appeals Court of Massachusetts reversed the judgment of a lower court in a case involving an easement dispute. In Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co., LLC, 89 Mass. App. Ct. 594 (2016), the defendant, a gas pipeline company, constructed a natural gas pipeline facility in 1998 across an area over which the plaintiffs claimed an easement. The area was a “paper” street, one that is shown on a plan but not built on the ground. The plaintiffs brought a trespass action against the defendant, alleging interference with an easement. The superior court granted the defendant’s summary judgment motion against the plaintiffs, and the plaintiffs subsequently appealed.easement dispute

On appeal, the court found that the plaintiffs possessed an easement by estoppel over the length of the avenue on which the facility was built. The court explained that when a grantor conveys land bounded on a street or way, the right to an easement of way extends the entire length of the street. The grantor cannot then deny the existence of a way, based upon the principle of estoppel. In Melrose Fish & Game Club, Inc., the plaintiffs’ lot abutted the avenue, and thus the court held that the plaintiffs also possessed a valid easement.

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In a recent zoning appeal, the Massachusetts Court of Appeals decided the question of whether neighboring residents could continue their attempt to block a permit allowing the construction of a building on an empty lot after missing a filing deadline. In McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119 (2016), the plaintiffs contended that the property, which was located in the town’s residential district, was not a buildable lot under the town’s zoning by-laws, and they sought to appeal a building permit issued to the landowners.building permit

In 1986, the previous owners of the property obtained a variance to divide it into two lots, one of which is the lot at issue. The previous owners recorded a plan endorsed pursuant to M.G.L.A. 41 § 81P in 1987, but the property was not transferred, and no building permit was applied for or granted. In 2013, the plaintiffs learned that the property was listed for sale, and they met with various town officials regarding their position that the property was not a buildable lot under appropriate zoning by-laws. Nevertheless, without any notice to the plaintiffs, a zoning permit was issued to the landowners, and construction commenced the next day.

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Property disputes are not uncommon between landowners, particularly those with neighboring lots. The Massachusetts Land Court recently reviewed a real estate lawsuit between neighbors involving claims of record ownership and adverse possession in the case of Evans v. Jackson (Mass. Land Ct. June 15, 2016).adverse possession

In Evans, the defendants owned a parcel of land that was once a tidal pool but was filled in the 1920s. The plaintiff claimed that she had title to the filled flats of the pond abutting her property, which were currently being used and occupied by the defendants, since title was conveyed along with her property pursuant to an ordinance. The plaintiff sought a declaratory judgment to prevent the defendants from constructing an addition to their single-family home on the disputed area. The land court, however, ultimately held that the defendants have title to the flats, and in addition, they obtained title to the disputed area by adverse possession.

In Evans, the court first traced the extensive history of the property at issue, going back to 1872. The land court narrowed the issue to whether the disputed area was intended to be included in the conveyance of the residential lot to the defendants, or whether the grantors did not intend to convey this additional area along with the lot. Accordingly, the court engaged in an analysis of the deeds to determine record ownership.

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Some foreclosure cases can become complicated, especially when multiple actions are filed in different courts with jurisdiction over a particular aspect of the dispute. In Merrill Lynch Credit Corp. v. Bishay (Mass. Dist. Ct. May 6, 2016), the foreclosure sale purchaser brought a residential summary process action against the former owners after they refused to vacate their home. The action was stayed while the former owners challenged the purchaser’s title in a separation action. The former owners then moved to amend their answer and counterclaim in the current case. The trial court denied the motion to amend and entered judgment awarding possession of the property to the purchaser.Foreclosure proceedings

In Bishay, the defendants were owners of the residential property at issue. In 2004, the defendants borrowed $650,000 from the bank, secured by a mortgage on the property. After the defendants eventually defaulted on the loan, the bank initiated foreclosure proceedings. The plaintiff acquired title to the property pursuant to a foreclosure deed, following an auction conducted by the bank. When the defendants failed to vacate the premises, a summary process action was filed against them. The defendants also challenged the validity of the title to the property in a separate action in the Land Court. The District Court action was stayed pending the outcome of the challenge to the title.

On appeal, the issue before the Massachusetts District Court was whether the judge erred in denying the defendants’ motion to amend their answer filed in the residential summary process action. In Massachusetts, the rules of civil procedure allow any party to amend its pleading once as a matter of course within 20 days after it is served, or after that time expires, by leave of court or by written consent of the adverse party. The court should allow a motion to amend unless it has a good reason, such as prejudice to the non-moving party.

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