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stormwater drainA drainage easement allows for part of an owner’s property to be used for runoff and stormwater drainage purposes.  They are typically written in the deed to the property, but a party may argue that it has acquired drainage rights by prescription, as in a September 14, 2018 Massachusetts real estate case.  The action was filed in Land Court by a developer seeking to establish its alleged drainage rights in the property of the homeowners.

The developer had purchased a former industrial site and sought approval to redevelop the land.  The homeowners lived downhill from the site on abutting property.  Stormwater was collected in a catch basin on the developer’s site and funneled into an underground pipe, which traveled beneath the homeowners’ property and eventually dumped the water into a ditch on their property.

The homeowners appeared at a public hearing on the developer’s plans, and questioned whether the developer had the right to drain stormwater onto their property.  The developer brought suit against the homeowners, initially asserting that it was entitled to drainage rights pursuant to the deed.  After further investigation, the developer conceded that it did not have deeded rights, and instead argued that it had acquired drainage rights by prescription.

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house plansOwners of vacant parcels of land often seek to construct single-family homes on the empty lots.  In most situations, Massachusetts property owners will need to obtain a permit from the local zoning authority to build a new home.  The plaintiffs in a September 27, 2018 case sought approval to build a single-family dwelling on each of the two vacant lots they owned.  The building inspector denied the permits, finding that the two lots lacked legal frontage, and therefore, were not buildable without a variance.  When the building inspector’s decision was upheld by the local zoning board, the plaintiffs appealed to the Massachusetts Land Court.

The lots owned by the plaintiffs were bordered by roads on their east and west property lines.  Under the local bylaw, a house lot must have at least 150 feet of frontage to a qualified way between its side boundary lines.  The primary issue in the case was whether one of the roads bordering the plaintiffs’ lots qualified as a way that would allow them to satisfy the frontage requirement for a lot with a house.

Massachusetts law defines a way that qualifies for frontage as: (1) a public way or a way that is maintained and used as a public way; (2) a way shown on an approved plan in accordance with the subdivision control law; or (3) a way in existence before the subdivision control law became effective, which provides for the traffic needs of the abutting land and for the installation of municipal services to serve the land.

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beachshoreLongstanding or frequent disputes between property owners may be difficult to resolve outside of court.  The parties involved in a September 25, 2018 Massachusetts real estate case had clashed over their respective property rights in a sandy beach area for more than a dozen years.  Following a bench trial and a jury trial, the Superior Court entered judgment declaring the usage and ownership rights of each party.  The case reached the Appeals Court of Massachusetts after the parties filed cross-appeals.

The plaintiff in the case was a beach association that owned a parcel of property next to the defendants’ lot.  The defendants’ home was located on a lot within the neighborhood.  Both the plaintiff’s and defendants’ lots abutted a strip of sandy beach on the shore of a large pond.  The plaintiff’s lot and the sandy beach had been used for recreation by the neighborhood’s homeowners and their guests for decades.  The years long dispute among the parties centered around the portion of the beach abutting the defendants’ lot.  The parties disagreed over their respective rights to use of the dock and boat ramp situated on that area, the defendants’ encroachment over the shared boundary line, and the plaintiff’s right to use a footpath behind the defendants’ house.

On appeal, the court looked to the records of prior conveyances of the parties’ lots, which were once owned in common.  In the original conveyance of the parties’ combined lots, the grantor had retained property on the other side of a road shown on the plan.  When viewed from the ground, the road was unpaved in front of the parties’ lots, having remained a strip of sandy beach.  The defendants argued that they had title to the sandy strip because generally, all grants of property bounded by water also pass on the land up to the water.  The appeals court, however, applied the Massachusetts derelict fee statute to conclude that, in the absence of an expressly contrary intent, the grantor conveyed title only to the center line of the road, and not the entire road.  Accordingly, each party owned the portion of sandy breach strip that extended from their respective lots to the mid-point of the strip.

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house keysUnderstanding your rights in real property may be crucial when making legal decisions concerning that property, as illustrated in an August 15, 2018 Massachusetts real estate case.  The dispute centered around property that had been the plaintiff’s home since 1987.  The plaintiff had initially owned the property, but he lost it to foreclosure in 1994.  The plaintiff continued residing in the house, however, after convincing a friend to purchase the house from the foreclosing bank and rent it to him.  The plaintiff hoped to buy the house back after his credit had improved.

In 2003, the house was sold to the defendant, another friend of the plaintiff.  The defendant promised to sell the property back to the plaintiff several times.  Each time, however, the plaintiff failed to close on the property through no fault of the defendant.  The last purchase and sale agreement was executed by the parties in 2015, and the defendant agreed to four extensions of the closing through the following year.  When the plaintiff did not close, the defendant initiated eviction proceedings.  In response, the plaintiff filed an action to impose a constructive or resulting trust over the property, claiming that he had been the property’s rightful owner all along.

A constructive trust is created by the court to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty, mistake, or other circumstances in which the title owner’s retention of legal title to property would result in unjust enrichment.  A constructive trust is not a true trust.  However, once a court determines that a constructive trust exists, the court can order the unjustly enriched party to transfer the property to the beneficiary of the constructive trust.

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subdivisionThe actions of developers and other businesses may have lasting effects on the properties of residential homeowners.  When the change is unwanted or unwarranted, homeowners may be able to take legal steps to protect their property rights.  In a September 7, 2018 Massachusetts real estate case, the homeowners succeeded in opposing a property developer’s plan to use a right of way easement on their property.

The developer in the case had applied to the local zoning authority for approval of a proposed plan to build an affordable housing complex with thirty-two dwelling units.  Seeking to demonstrate that there was sufficient access to the proposed development, the developer added to its proposed plan an additional access road traveling from the public road to the development.  The additional access road proposed by the developer, however, required use of a right of way through property owned by the plaintiffs.  The plaintiffs filed an action in the Massachusetts Land Court to protect their rights in the right of way, arguing that the developer had no rights to cross their land to access the proposed development from the public road.

The developer first argued that it had a granted easement over the right of way because it was shown on the recorded plan of the plaintiff’s subdivision.  The court disagreed, holding that the mere depiction of a way on an approved subdivision, without more, does not operate as a grant of an easement.

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land parcelDividing property held in joint ownership may require a court order in cases where the owners cannot reach an agreement.  In a September 5, 2018 Massachusetts real estate case, the Appeals Court reviewed an order of a lower court dividing the property owned by the parties.

The parties in the case owned two noncontiguous parcels as tenants in common.  The plaintiff filed a petition for partition, alleging that physical division of the property was impossible and seeking a sale of both lots.  The lower court divided the property by awarding the more valuable parcel to the defendants, with a monetary payment to the plaintiff to make up the difference in value.  The plaintiff appealed, arguing that the lower court should not have relied on appraisals to determine the value of the property, and instead, should have ordered a public or private sale.

In a Massachusetts partition action, a sale is not simply an equally available alternative to a physical division.  Nor does the difficulty and complexity of achieving a just and equitable physical division of the property, alone, justify a sale.  Rather, the court may only order a sale after it determines by a preponderance of the evidence that the land cannot be divided advantageously.  Generally, the advantage or disadvantage of a division must be a pecuniary one.  The judge may take into account the physical condition of the land to be divided, together with any potential damage to the profitability of the land.  In cases involving multiple noncontiguous lots, as here, the court may divide the property by awarding intact lots to the various parties, rather than by physically dividing each lot by metes and bounds.

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easementIn Massachusetts, a right of way easement may be legally recognized or established in different ways.  In an August 10, 2018 case, adjacent property owners brought their dispute regarding a right of way easement before the Massachusetts Land Court.  The defendants in the case claimed the right to use a right of way located on the plaintiff’s property.  The plaintiff argued that the defendants had no right to the easement because the right of way was not specifically mentioned in the plaintiff’s certificate of title.

In Massachusetts, a person with a certificate of title to property receives the property free from all encumbrances except those noted on the certificate.  Registered land, therefore, generally cannot be burdened with an easement unless it is shown on the certificate of title.

A property owner may, however, take property subject to an unregistered easement under two narrow exceptions.  First, registered property may be encumbered by an easement if there are facts described on a certificate of title which would prompt a reasonable purchaser to investigate the issue further, such as by examining other certificates, documents, or plans in the registry system.  Second, registered property may be subject to an easement where the purchaser has actual knowledge of a prior unregistered interest, such as an easement.

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Legal News GavelMaking certain changes to your property, such as dividing or building on your lot, may be subject to local zoning laws in Massachusetts.  These changes typically require approval, as illustrated in an August 15, 2018 case before the Massachusetts Land Court.

The plaintiff in the case owned a large parcel of property that straddled the Massachusetts and New Hampshire state line.  He had sought approval from the local planning board to divide a portion of his property into three lots.  All three proposed lots were located in Massachusetts, met the minimum frontage and lot size requirements, and had frontage on a public road.  The board nevertheless denied the request, finding that the proposed plan would result in the New Hampshire parcel becoming landlocked.

The plaintiff appealed the board’s decision with the Massachusetts Land Court.  On appeal, the issue to be decided by the court was whether it was appropriate for the board to consider how the division of one portion of the property located in Massachusetts would affect another lot located in New Hampshire.

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The purchase and sale agreement between a buyer and seller of property contains important details about the transaction.  A Massachusetts real estate attorney can explain the terms of the purchase and sale agreement so that a home buyer understands the consequences of signing the contract.  In an August 3, 2018 case before the Massachusetts Land Court, the plaintiffs filed an action against the subdivision developer that sold them their home.  The dispute concerned the ownership and use of a lane to access other houses within the subdivision.Legal News Gavel

The plaintiffs in the case purchased their house from the defendant in 2002.  The defendant retained ownership of several acres of land abutting the plaintiffs’ property, intending to develop the parcel as a multi-house subdivision.  The defendant therefore insisted upon a rider to the parties’ purchase and sale agreement, providing that the plaintiffs agreed not to interfere with the planned subdivision and acknowledged that the defendant may grant an easement on the property to serve that subdivision.

In 2017, the defendant finally received approval to build 20 homes on the parcel abutting the plaintiffs’ property.  The permit also allowed the defendant to build a lane providing access to a street from the subdivision.  The plaintiffs filed a quiet title action against the defendant, asserting that the easement was intended to serve a maximum of four homes and that the easement would be overburdened by a lane serving the proposed subdivision.

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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.Legal News Gavel

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.

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