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In general, new homes must be constructed pursuant to the current requirements of local Massachusetts real estate zoning bylaws.  Under some circumstances, however, the zoning bylaw may provide for an exception, such as for existing structures.  In an October 7, 2019 opinion, the Appeals Court of Massachusetts considered whether a cottage that had been destroyed by a tornado could be reconstructed under a local bylaw provision for existing structures.

The plaintiff and the defendant in the case were two of the five family members who owned a parcel of land.  The property had contained a non-conforming, 800 square foot seasonal cottage built in 1939 by the previous owners.  In June 2011, the cottage was destroyed by a tornado that ripped through the area.  A dispute arose between the plaintiff, who wished to rebuild the cottage, and the defendant, who wished to maintain the property as open land for private conservation and recreational purposes.

The plaintiff nevertheless contacted the local building commissioner to inquire about a building permit for a new single-family residence.  The building commissioner agreed to allow the residence pursuant to an exception for existing structures under the local bylaw.  The decisions issued by the zoning board and Land Court were appealed and the matter subsequently came before the Appeals Court of Massachusetts.

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If someone has interfered with your easement or property rights, you may have legal recourse.  In a September 19, 2019 Massachusetts real estate case, the plaintiffs filed an action against their neighbors in Land Court claiming that their property had the benefit of an easement over their neighbors’ property.  Specifically, the plaintiffs sought a declaratory judgment from the court that they had the right to use an existing driveway on the defendants’ property to access their own property, and a restraining order enjoining the defendants from blocking the plaintiff’s access to their property.

The plaintiffs in the case asserted that their right to use the defendant’s driveway was based on a recorded easement, a prescriptive easement, and/or an easement by necessity.  With regard to the plaintiffs’ claim to a recorded easement, the court held that the deed presented in support of their argument was ineffective to create an express easement.  The court explained that, although both parties’ properties were held under common ownership originally, at the time the grantor purported to convey the right of way at issue, he did not own the defendant’s property.  As one cannot convey a property right that one does not own, the court ruled that no express easement was created by deed.

The court next addressed the plaintiffs’ claimed easement by necessity.  In Massachusetts, an easement by necessity requires the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.  The court noted that the deed severing the parties’ properties granted an express easement that provided access to the plaintiff’s property, although one was never constructed.  Nevertheless, the court held that the plaintiffs did not present any additional evidence that access over the defendants’ driveway was reasonably necessary.

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There are several ways in which limitations may be imposed in Massachusetts property rights matters.  Some examples include local zoning bylaws, which may regulate aspects such as how far a structure must be set back from the street, and public easements, which may prevent the property owner from blocking off access with a privacy fence.  Deed restrictions are another means by which property use may be restricted, as in a September 12, 2019 Massachusetts property case decided by the Appeals Court.

The prior owner of the plaintiff’s land had received property from the city as part of its “Yard Sale” program.  Through the program, the city conveyed vacant lots to the owners of the abutting property, subject to an open space restriction.  Accordingly, the deed required that the land be used for open space purposes and prohibited construction of new structures on the lot.  The owners of the restricted lots were, however, allowed to build an addition on the house located on their original lot.

When the plaintiff purchased the lot from the prior owner in 2010, the deed conveying the property contained the same building restrictions.  Seeking to remove the restriction, the plaintiff filed an action for a declaratory judgment in Land Court, seeking to remove a restriction placed on her property.  The plaintiff argued that the deed restrictions violated public policy because they imposed an unreasonable restraint on alienation.  The Land Court disagreed and granted summary judgment against the plaintiff; the matter then came before the appeals court.

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If you are planning to construct a new home on your recently purchased property, a Massachusetts real estate attorney can guide you through the legal process.  Typically, new residential construction is subject to local zoning laws, illustrated in a September 16, 2019 case.

The plaintiffs in the case had reportedly applied for a building permit in 2008 to construct a single-family residence on their land.  The town building commissioner denied that permit and, after exhausting their appeals with the local zoning board and Massachusetts Land Court, the plaintiffs revised their plans.  In 2018, they reapplied for a permit using the revised plans.  When the 2018 permit was denied for a second time, the plaintiffs once again sought review of the decision in the Land Court.

Under the local zoning bylaws, a building or structure in a residential district must be at least 60 feet from the street.  There is an exception, however, if there is a principal building within 500 feet of, and on each side, of the proposed building.  In such cases, the proposed building may extend as far as the neighboring buildings.

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A homeowner may file an action to quiet title in order to claim their ownership rights of the property in question.  In a September 4, 2019 Massachusetts property case, the plaintiffs brought an action in Land Court claiming ownership of a way that lined one side of their property.  The plaintiffs also sought a judgment that the defendant, a neighboring property owner, had no rights in or over the way.

The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue.  When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property.  The fence was installed by the previous owner of the defendant’s property.  It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way.  In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.

Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise.  The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way.  The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.

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Gathering evidence to support an adverse possession action can be daunting, but a Massachusetts real estate lawyer can assist you in putting forth the strongest case possible.  The plaintiff in an August 29, 2019 case succeeded in establishing title by adverse possession to two separate areas of land abutting her property.  The Appeals Court of Massachusetts affirmed the decision of the lower court after examining the evidence she presented to make her case.

The plaintiff in the case purchased her home in 2000.  To the west and south, her property directly abutted an undeveloped, wooded land owned by the defendant.  The west area was a mowed, grassy area, with no permanent improvements.  The south area was largely covered by a paved basketball court, with one permanent post, backboard, and hoop.

The defendant did not dispute that the plaintiff had established the elements of adverse possession over the west and south areas during the 14 years that she has owned her property.  Rather, the question was whether the plaintiff could prove that the prior owner of her property had also met the required elements for the remaining 6 years, in order to establish a 20-year period of adverse possession.

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The public generally enjoys an easement of travel over all public roads.  In rare circumstances, the public may also have a right to use a private way.  However, such a right does not include the broad rights of a public road.  In an August 21, 2019 Massachusetts real estate case, the plaintiffs brought an action in Land Court to establish a right of access over the defendants’ private roads.

The plaintiffs in the case owned two landlocked parcels of land, with no means to reach it from a public way or public road.  Rather, the only available access to the plaintiffs’ parcels was by using two private ways, which were located on the defendants’ properties.  In their Land Court action, the plaintiffs asserted that they had the benefit of a public right of travel over the defendants’ two private roads.

In Massachusetts, a private way may become a public way by prescription.  There also can be private ways, not dedicated to public use, that are nevertheless open to public use by license or permission of the owner.  Generally, establishing that a private way has become public is more difficult to prove than showing that a private way is open to the public.  The rights allowed in a private way open to the public, however, are much more limited than the easement rights afforded to the public in a public way and a public way by prescription.

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The issue of Massachusetts real estate easement rights commonly arises in situations involving beach access and pathways to the shore.  This issue was the source of the dispute in an August 16, 2019 case decided by the Massachusetts Land Court on summary judgment.  The question for the court was whether the defendants had an easement in a way referred to as the “shoreway,” which abutted the plaintiffs’ registered property.

The parties’ properties were located along a bay in Massachusetts.  The properties were once part of a larger tract assembled in 1950, which had been registered on a county registry district certificate and depicted on a Land Court plan.  The lands comprising the larger tract, however, had been registered long before 1950 in various certificates.  Many of these certificates mentioned the roads within the registered parcels, and provided that the streets and ways shown on the plan were subject to the rights of all persons lawfully entitled to use them.

When the larger tract was divided in 1950 and thereafter, the developer registered several subdivision plans that included inland lots and oceanfront lots.  The plans also depicted “shoreways,” which extended a short distance from the private interior subdivision roads to the bay.  Both the inland lots and the oceanfront lots referred to easements providing a right of way in common with others over the private ways and shoreways.

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A restrictive covenant is a binding legal obligation that relates to the use of the land.  Typically, restrictive covenants are written into the real estate deed to the property.  In some situations, a plaintiff may sue to enforce a covenant against the owner of property subject to a restrictive covenant, as in an August 9, 2019 Massachusetts property case.

Both of the parties in the case resided in a subdivision abutting a country club and golf course.  When the homes were sold, the subdivision developer imposed a No Pools Restriction on the lots. The defendant knew about the restriction when he bought the property but began building a pool anyway.  The plaintiff filed a lawsuit in Land Court to enforce the restrictive covenant and enjoin the defendant from completing the pool.

In Massachusetts, although landowners are not precluded from bargaining for and enforcing beneficial land use restrictions, restrictions on land are generally disfavored.  To promote the reasonable use of land and increase the marketability of land impaired by obsolete restrictions, Massachusetts has enacted a statute that limits the right to enforce restrictive covenants on real property.  The defendants in the case agreed that their property was subject to a restrictive covenant but argued that this statute applied to prevent the plaintiff from enforcing the restriction at issue.

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Massachusetts easement rights are often a source of contention between neighboring property owners.  If a property owner files an action for a declaratory judgment, the court may issue a decision setting forth the easement rights of the respective property owners, as in a July 26, 2019 case.

The plaintiff in the case brought an action against her neighbor, seeking a declaration that her neighbor had no legal right to the continued use of a sewerage pumping station on her property, and seeking injunctive relief and damages.  After the lower court granted the plaintiff’s motion for summary judgment, the defendant filed an appeal with the Appeals Court of Massachusetts.

At the time the plaintiff had purchased her lot, she was aware that the prior owner of the defendant’s lot was using the pump station on her lot to dispute of sewage.  The local town, however, had been paying the costs associated with the pump station since its completion in 2001.  In 2011, the town sought to recoup these costs from the plaintiff.  Thereafter, a disagreement arose between the parties regarding the defendant’s contribution towards the expenses of the pump station.  This prompted the plaintiff to file an action seeking a declaration that the defendant had no right to use the pump station.

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