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Before someone can challenge the validity of a permit issued to another landowner, that person must have legal standing.  In a June 12, 2017 case, the issue for the Massachusetts Land Court was whether a plaintiff who lived across from the defendant’s property had standing to appeal a special permit granted to the defendant by the local zoning board.  The special permit allowed the defendant to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and where larger buildings require a special permit.unfinished building

The defendant in the case was a real estate developer that purchased property located across the street from the plaintiff’s house.  The defendant sought a special permit to tear down the existing single-family home on the property and replace it with a single structure containing four residential units.  After the zoning board granted the permit, the plaintiff appealed, alleging that she would  be negatively affected by traffic and fire vehicle access that will result from the proposed development.

In order to have standing to challenge the defendant’s zoning permit, the plaintiff must be “aggrieved” as defined by law.  People entitled to notice of the permit are entitled to a rebuttable presumption that they are aggrieved.  In the case, the plaintiff was an abutter to an abutter within 300 feet of the defendant’s property, and as a result, she was entitled to the presumption that she is aggrieved.

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If a zoning board decision affects other adjoining or nearby landowners, they may be able to appeal the ruling.  The Massachusetts Land Court reviewed a case on June 7, 2017 in which the defendants had obtained approval from the local zoning board to tear down a lawfully nonconforming garage on their property and replace it with a larger, single-family home.  The plaintiffs, who lived on a parcel of land abutting the defendants’ property, appealed the zoning board’s grant of a special permit and variances authorizing the plan.construction

After determining that the plaintiffs had standing to bring the appeal, the land court turned to the question of whether the special permit had been properly issued.  The defendants in the case requested relief from the off-street parking requirements of a local ordinance, which required a 20-foot driveway to accompany parking facilities within the ground floor of a structure.  Pursuant to local laws, the zoning board is authorized to waive this requirement by issuing a special permit, if the board finds that the reduction is not inconsistent with public health and safety or that the reduction promotes a public benefit.

After reviewing the zoning board’s written determination, the land court found that, despite the lack of an explicit finding that the defendants’ proposal was not inconsistent with public health and safety or that the reduction promotes a public benefit, the standard was implicitly applied when the zoning board considered traffic flow and safety and stated that it did not foresee the location and the size of the site as having a significant negative impact.  The land court concluded that the board employed an evaluation that was functionally identical to that mandated by the ordinance regarding parking waivers.

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Before making changes to an existing building or constructing a new one, property owners may have to obtain approval from the local government. In a May 30, 2017 case, the Massachusetts Land Court reviewed a zoning board decision granting a variance to the defendants for the construction of a new house on their vacant lot. The plaintiffs appealed the variance, which would allow the defendants’ house to be 15 feet closer to the plaintiffs’ property than permitted by the setback.delta

The defendants in the case owned two lots that were conveyed to them by a single deed in 1986. The defendants had built a house on one of the lots, while the other lot remained undeveloped. The plaintiffs in the case resided in a house located next to the defendants’ vacant lot. The vacant lot was oddly configured, making improvement of the property difficult due to its unique shape and the presence of wetlands. The zoning board ultimately granted the variance, finding that these factors created a hardship to the defendants that justified relief in order for them to develop the property. On appeal, the plaintiffs claimed that the proper requirements for issuing a variance were not met, and as a result of the variance, they would suffer from increased density, reduction in privacy, loss of view, decrease in property value, safety infringements, and instability to their property.

The primary issue for the land court was whether the two lots owned by the defendants had merged for the purposes of zoning, which would result in the loss of grandfathered status and subject the property to the contiguous upland requirement in order to be buildable. The merger doctrine provides that adjoining land in common ownership must be added to nonconforming land in order to bring it into conformity or reduce the nonconformity. The grandfather provision at issue in the case exempted certain lots from increases in lot area, frontage, width, yard, or depth requirements, protecting owners whose lots previously conformed with zoning requirements. However, the exception was not available to lots held in common ownership with an adjoining lot, which may be combined, or merged, to reduce or eliminate the nonconformity. The bylaw provided that lots held in common ownership are entitled to grandfathering for five years after the effective date of a zoning change, if certain requirements are met, after which the lots are combined or merged to reduce nonconformity.

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Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right.  The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants.  The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property.  The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.power line

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years.  The easement claimed is limited to the uses actually made of the section of property that meet those elements.  The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography.  Roots, stumps, and rocks had been left in the path.  At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it.  Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company.  By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

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In some cases, home owners may need to seek approval from local officials before making significant changes to their properties. In a May 5, 2017 opinion, the Massachusetts Land Court reviewed a zoning board decision rejecting a building permit application filed by the plaintiff.  The key question for the court was whether a vacant, dimensionally non-conforming parcel of land merged for zoning purposes with an adjacent property, therefore rendering the vacant parcel separately unbuildable.construction

The vacant parcel at issue was held in trust, with the plaintiff and her mother as trustees.  The plaintiff also owned, in her individual name, an adjacent property with an existing house. The plaintiff filed a building permit application to construct a single-family home on the vacant parcel, which was denied on the ground that it was under common control with the adjacent parcel.

In Massachusetts, the doctrine of merger provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes in order to minimize non-conformities.  Once merger occurs, it cannot be undone.  In other words, a person owning adjoining lots may not artificially divide them in order to restore old record boundaries and obtain a grandfather non-conforming exemption.  Instead, to preserve the grandfather non-conforming exemption, the lots must retain their separate identity.

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When faced with an impending mortgage foreclosure, many homeowners may have defenses or other legal options that could result in a more favorable outcome.  The Appeals Court of Massachusetts recently reviewed a case on March 31, 2017 that involved defendants who had lost their home to foreclosure.house

At the foreclosure sale in 2013, the high bid did not cover all of the defendants’ remaining debt on the mortgage, leaving a deficiency.  The defendants had been paying the premium for a mortgage insurance policy, as required by their original lender. The insurer, the plaintiff in the case, sued the defendants to recover the deficiency.  The plaintiff moved for summary judgment on a contractual subrogation theory.  The lower court granted the motion and entered a judgment for approximately $41,000 against the defendants.  The defendants appealed the judgment to the higher court.

On appeal, the defendants contended that the lower court erred in entering its judgment because there was a factual dispute as to whether the plaintiff actually paid its insured and acquired any contractual subrogation rights against the defendants.  In support of their argument, the defendants alleged there was no evidence that the plaintiff complied with two provisions of the insurance contract relevant to subrogation.

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The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.beach

In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

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In many situations, property owners must pursue judicial action to determine their rights in real estate matters.  In a March 23, 2017 case, the Massachusetts Land Court resolved a boundary dispute between the owners of adjacent properties.  The area in dispute was a portion of the plaintiffs’ driveway, which ran parallel along the shared boundary line.  Both parties relied on surveys they obtained to prove ownership of the disputed area.  Unable to resolve their dispute out of court, the parties sought a determination from the land court regarding the true common boundary line of the properties. driveway

In June 2003, the plaintiff paved over his gravel driveway against an existing piece of rebar, located on what he believed was the common boundary line.  Once the asphalt was laid, the plaintiff did not take any measurements or verify whether the new driveway was in a different location from the gravel driveway, closer to the defendants’ property.  Believing that the paved driveway encroached upon their property, the defendants hired a surveyor to research and prepare a plan determining the location and dimensions of their property.

In 2005, the defendants approached the plaintiffs and asked if they could execute a document acknowledging the defendants’ determination of the property line.  The letter also gave permission to the plaintiffs to use the encroaching sections, such as the driveway and the mailbox areas, as long as they confirmed the location of the shared boundary based on their survey. The plaintiffs declined to sign the letter and, believing that the survey was incorrect, retained the services of another company to investigate and make a determination of the boundary line.

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Property owners may apply for special permits allowing them to construct non-conforming buildings or renovations on their land.  In some cases, the grant of such a permit may be challenged by abutting neighbors.  The Massachusetts Land Court recently reviewed a zoning board decision in an April 6, 2017 appeal.  The defendant in the case was granted a special permit to replace an existing single-family house on his property with a much larger two-story house and another freestanding accessory building with a three-car garage.  The plaintiffs, who owned abutting property near the defendant, appealed the decision to the land court.barn

The case was complicated by the fact that there was another single-family house on the defendant’s property.  In 1945, a zoning by-law was enacted that made it unlawful to have two dwellings on one residential lot.  However, the 1945 by-law also provided that legally pre-existing nonconforming structures and uses could be continued and may be expanded if a special permit is granted.  The issue for the land court was whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945.  If they were not, the special permit would be invalid.

The land court found that the two existing houses on the defendant’s property were dwellings because they are detached buildings separated from other structures and designed to accommodate a residence for the use of one or more individuals.  Accordingly, its use was nonconforming under the 1945 by-law and could be continued only if both of the houses existed lawfully before the zoning by-law was enacted.  After reviewing the evidence of record, the land court determined that the second dwelling did not exist until after the enactment of the 1945 zoning by-law.  As a result, the land court held that it was not a lawful pre-existing, nonconforming use and may not be continued.

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Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

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In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

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