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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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Legal News GavelA 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.

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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.Legal News Gavel

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.

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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.Legal News Gavel

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.

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