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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.dog

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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In certain instances, using a private road on another person’s property over many years may give rise to a property interest.  In a June 26, 2018 Massachusetts real estate case, the plaintiffs had been using the defendants’ private road to access a main throughway from their property.  They filed an action in land court arguing that they had acquired an easement over the road.camino-1372467-640x480-300x225

In the case, the plaintiffs’ house could be reached by taking one of two different routes from the main road.  Using the road in dispute, which was located on the defendants’ property, was the easiest and quickest route.  When the plaintiffs purchased their home in 1993, they had assumed that use of the disputed way was conveyed by the deed to the house, which provided “a right of way to the Public Highway.”  Accordingly, the plaintiffs had used the disputed way from the time they moved in, believing they had a right to do so.  In the midst of the instant disagreement with the defendants, the plaintiffs learned from their attorney that they had misinterpreted their deed, and that the right of way merely referred to the street on which their house was located.  Nevertheless, the plaintiffs filed an action against the defendants, claiming that they had acquired a private easement by prescription over the disputed way.

In Massachusetts, a claimant may be entitled to a prescriptive easement over the land of another if it is shown by clear proof that the use of the land has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of at least twenty years.

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Some restrictions on property are limited in their duration, often either through the express terms of the instrument or by statute.  In a May 18, 2018 Massachusetts real estate case, the issue concerned the water usage rights of a local town in a lake located on the defendant’s property.  The parties disputed whether the town still had the rights, or whether the rights had since reverted back to the owner of the lake.bridge

In 1958, the prior owner of the defendant’s land had conveyed flowage and usage rights of the lake to a business entity.  The entity, in turn, conveyed the rights to the town in 1972.  These rights were subject to a reversionary interest in favor of the grantor and his successors.  This meant that, if certain conditions were not met, the town would lose its rights in the lake, and they would return to the current owner of the property.  Specifically, if the town failed to maintain the dams or impound the waters of the lake as agreed in the 1958 conveyance, the grantor or their successors could, at their option, record a written declaration that would effectuate their reversionary interest.

In 2016, the defendant recorded an instrument that purported to effectuate its reversionary interest in the rights that were conveyed in 1958.  The town, in turn, filed an action seeking to quiet its title to the flowage and usage rights it obtained in 1972.  Although the town conceded that it had not maintained the dams and impounded the waters of the lake, as required by the conveyance, it argued that under Massachusetts law, the original grantor or successors had only 30 years to make the necessary record to effectuate their reversionary interest.  The town asserted that since they failed to record a declaration within the 30-year period, the town acquired absolute ownership of the flowage and usage rights.

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People who claim the right to an easement on another person’s property may need to take legal action if the existence of the easement is disputed.  At issue in a June 7, 2018 Massachusetts real estate case were the plaintiffs’ rights, if any, to access their woodlands by going through the defendants’ privately owned lands.construction

The plaintiffs in the case sought to use a route on the present-day remains of two former dirt roadways.  The dirt roadways were once public roads taken in easement by town meeting votes in 1780 and 1805.  These roads fell into disuse by the mid-1800s and were eventually discontinued by a town meeting vote in 1886.  Thereafter, the sections at issue in the case were gated off, and the underlying land was re-integrated into the properties currently owned by the defendants.  The plaintiffs did not need the easement access, since they could access all areas of their properties from public roads and internal roads on their properties.  However, the plaintiffs wanted to use the easement at issue because the route would provide more direct and easier access for them to conduct logging operations on their property.

In support of their action, the plaintiffs argued that the town votes did not discontinue the roadways’ public status, only the public obligation to maintain them, or in the alternative, that the public subsequently acquired access rights by prescription.  The plaintiffs also claimed an easement over the former roadways by necessity, prescription, or express or implied in their deeds.

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The foreclosure process for a residential mortgage loan can seem daunting, but the borrower may have defenses against foreclosure.  In a May 11, 2018 Massachusetts foreclosure action, the Appeals Court of Massachusetts found in favor of a homeowner fighting against foreclosure.  Ultimately, the court reversed the judgment of the lower court and allowed the plaintiff to continue her defense in the proceedings.cash

The facts of the case are not unusual in foreclosure actions.  The plaintiff signed the original note payable to the bank in 2007.  A few months later, Fannie Mae purchased a pool of loans from the bank, including the plaintiff’s loan.  After the plaintiff defaulted, the bank sent her a right to cure notice.  In 2009, a mortgage loan servicer for Fannie Mae foreclosed on the plaintiff’s home, exercising the power of sale contained in her mortgage.  The servicer, acting for Fannie Mae, offered the highest bid at the auction.  Fannie Mae purchased the property and then brought an eviction action against the plaintiff in Housing Court.  The plaintiff brought her own action and obtained a preliminary injunction against the eviction, on the basis that the servicer did not hold the mortgage note at the time of the foreclosure sale.  On remand, however, the court entered judgment in favor of Fannie Mae and the loan servicer.  The plaintiff appealed the judgment in the case.

On appeal, the plaintiff presented three arguments for reversal, two of which pertained to the requirements of the right to cure notice.  The provision at issue required the notice to specify the default, the action required to cure the default, a date no earlier than 30 days of the notice by which the default must be cured, and a statement that a failure to cure the default on or before that date may result in acceleration.  The provision also required that the notice must inform the borrower of her right to reinstate after acceleration, and her right to bring a court action to assert any defenses to acceleration and sale.

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An easement is the legal right to a particular, limited use of property by someone other than the owner of the property.  In some cases, the existence of an easement may become unclear after the property has passed down through different owners over many years.  In a February 23, 2018 opinion, the appeals court considered a Massachusetts real estate action involving the plaintiffs’ claim to a right of way easement over the defendants’ land to access a main road.desolate highway

The plaintiffs in the case owned a four-acre oceanfront parcel of land.  The first mention of the easement at issue was in a 1927 deed, through which the original grantor conveyed a portion of his land.  That portion was eventually owned by the plaintiffs.  The 1927 deed included an easement consisting of a right of way from the north side of the parcel to “Beach Road.”  The easement appeared with the same language in each subsequent deed conveying the parcel of land, but it was not precisely identified.  Through other deeds in 1927, the original grantor also conveyed the property currently owned by the defendants, which contained a way to access Beach Road.

In 1999, the plaintiffs divided their parcel into two lots and sold one of them to a third party.  However, the plaintiffs did not expressly reserve a right of way over the lot they sold.  Subsequently, a dispute arose over the location of the 1927 easement.  The plaintiffs alleged that the easement began at a point on the road that adjoins their property and crosses over the defendant’s land to meet Beach Road.  The defendants argued that the right of way began from the lot no longer owned by the plaintiffs.

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The property interests of condo unit owners are typically defined in the Master Deed.  If legal disputes arise regarding the residents’ usage of the common areas, facilities, or parking garages of their building, the Master Deed may determine the rights of the respective parties, as in a May 14, 2018 Massachusetts real estate case.  The case involved a dispute among condominium owners over parking rights.condominium

The plaintiffs in the case owned Unit One in a residential condominium containing three units.  The plaintiffs filed a complaint in the Massachusetts Land Court, seeking a declaration that they have rights to the exclusive use of two and one-half parking spaces within the condominium’s common area.  The defendants owned Unit Two in the condominium.  The defendants argued that, in accordance with the original Master Deed and Unit deeds, each unit has the right to the exclusive use of only one parking space.

In determining the rights of the parties, the land court reviewed real estate documents, including the Master Deed.  The Master Deed provided that each unit in the condominium shall have an appurtenant right to the exclusive use of one parking space to be either assigned to each unit by written designation in the initial Unit Deed for each unit, or if not assigned in the initial Unit Deed, to be assigned by the Condominium Trust.  However, none of the initial deeds in the condominium actually included an assignment of a parking space.

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The consequences of a zoning board decision are not limited to the subject property but may also affect the neighborhood and wider community.  In certain situations, someone who believes a decision will negatively affect them may challenge a Massachusetts zoning board ruling.  However, Massachusetts law restricts the group of people with standing to bring such appeals, as explained in a May 17, 2018 case before the Appeals Court of Massachusetts.elephant

The case concerned a local zoning board’s approval for modification of a special permit granted to the defendant, which operated a for-profit circus school for instruction in arts, skills, or vocational training.  After the plaintiff received notice of the zoning board’s decision, she filed a complaint in the Massachusetts Land Court, alleging that the changes would cause a detrimental health, safety, and welfare effect on her and her neighbors.  The Land Court dismissed the complaint due to her lack of standing, and the plaintiff appealed.

To have standing, and thus the right to bring suit, to challenge the decision of a municipal zoning authority in Massachusetts, the plaintiff must be a person aggrieved as defined by law.  This requires a plaintiff to show she has suffered a specialized, clearly identifiable injury, rather than merely articulating the general concerns of the community.  If the plaintiff falls under the category of people defined by statute, however, she is presumed to be aggrieved.  The statute applies to people on abutting property, abutters to abutters within 300 feet of the property at issue, and the owners of land directly opposite from the property at issue.

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Over many years, the discontinued use of a public road or way could lead to a dispute over ownership, as in a May 9, 2018 Massachusetts real estate case.  The plaintiffs filed the action in the Land Court, seeking a determination that a short, partially paved, and gravel way passing over the defendants’ properties was part of a public way, and furthermore, that it remained a public way today.  Conversely, the defendants argued that it was a private way.  To decide the issue, the Land Court looked at records of the creation of the way from 1816, when the town voted to accept a road laid out in the area of land currently owned by the defendants.field

In Massachusetts, a way is not public unless it has become so through one of three ways.  First, it may be laid out by public authority in the manner prescribed by statute.  Second, it may become a public way through prescription.  Lastly, prior to 1846, an owner could dedicate the way to public use, and upon acceptance by the public, it could become a public way.  Under the facts of the case, the area in dispute could only be a public way if it was laid out as such by the town.

Once a public way has been duly laid out, it will continue to be a public way until it is legally discontinued.  Generally, the courts will not assume that public officials have abandoned a highway easement without an act on the part of the property authority to discontinue its status as a public way.  Nor will mere non-use or apparent abandonment of a public way by a town result in the discontinuance of its public status.  In the case, there was no evidence that the disputed area was discontinued.  As a result, if it was properly laid out as a public way in 1816, it would retain that status presently.

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A deed restriction may significantly affect one’s enjoyment of their own property by prohibiting certain uses, activities, or construction.  The plaintiff in an April 26, 2018 Massachusetts land use case challenged a deed restriction imposed on her property in the Massachusetts Land Court.  She sought a declaration that some of the deed restrictions were invalid, alleging that they violated public policy by imposing an unreasonable restraint.  The defendant in the case was the City of Boston.photo_49244_20151116-300x255

In 1991, the City sold the lot to the prior owner as part of a program in which it conveyed small parcels of land to abutting Boston residents, subject to deed restrictions.  The open-space restriction required that the property be used and maintained for open space purposes, such as gardening, landscaping, and off-street residential parking.  The no-build restriction prohibited the construction or installation of structures on the lot, with only one exception for an addition to the existing dwelling on the abutting lot.  The purpose of the program and deed restrictions was to retain the public benefits of open space as well as preserving reasonable density in Boston neighborhoods.

In connection with the deed, the prior owner executed a mortgage on the property, which required the written consent of the City in order to assign it to a successive owner and secured the owner’s compliance with the restrictions.  In 2010, the City gave its consent to the conveyance of the property to the plaintiff.  The deed set forth the same restrictions but expressly provided that they were for the benefit of the City of Boston.  The plaintiff also granted a mortgage at that time, in which she agreed to the restrictions.

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