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Some homeowners can choose to take a bank loan secured by a reverse mortgage on their property, but they should be aware of the potential consequences in the event of a default.  In a January 18, 2017 case before the Massachusetts Land Court, a bank sought a determination of its rights to foreclose on a reverse mortgage and enter a default judgment against the deceased homeowner’s estate and heirs.  The homeowners purchased the subject property in 1984 and executed a reverse mortgage to the plaintiff in 2008.  After they passed away, the plaintiff accelerated the debt and declared the loan secured by the reverse mortgage to be in default.sale

The Land Court had previously determined in other cases that the plaintiff’s standard mortgage form was sufficient to incorporate the statutory power of sale by reference.  However, the plaintiff also moved the court for additional relief in the form of a declaration that the estate was in default of the mortgage and that the default permitted the plaintiff to foreclose on the mortgage, pursuant to the power of sale to satisfy the estate’s obligations.  The larger issue in the case was whether the Land Court had subject matter jurisdiction to provide the relief requested by the plaintiff.

The Massachusetts Land Court has jurisdiction over matters in which any right, title, or interest in land is involved.  Since Massachusetts is a title theory state, and a mortgage is an interest in the property that secures the mortgage debt, the mortgagee has a right, title, or interest in that property.  However, with a statutory power of sale, a mortgagee may foreclose without prior judicial intervention.  Although it is regulated by statute, non-judicial foreclosure occurring pursuant to a private power of sale in the mortgage is a private procedure involving private parties.  Therefore, absent some controversy over title or interest in the mortgaged real property, the land court lacks jurisdiction to consider other aspects of an action involving the ability to foreclose.

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Whether or not a property owner can challenge a zoning decision regarding another property depends on his or her standing.  The Massachusetts Land Court decided a March 13, 2017 case in which the defendants argued that the plaintiff lacked standing to object to a local zoning board decision.  The court provided a thorough explanation of the issues and requirements relating to injury and standing.lighthouse-1226471-639x852-1-225x300

The case arose out of the proposed construction of a two-story addition that would be used to store the archives of a historical society.  The historical society sought a variance from the zoning board to construct its addition outside of the side-yard setback allowed by local regulations.  The plaintiff owned and resided at a property across the street from the historical society building, approximately 240 feet from the site of the proposed addition.  When the zoning board granted the variance, the plaintiff filed a complaint appealing the decision.

Under the Massachusetts Zoning Act, only a person aggrieved has standing to challenge a decision of a zoning board of appeals.  Abutters, landowners directly opposite on any public or private street or way, and abutters to abutters who are within three hundred feet of the property line of the petitioner are entitled to notice of zoning board hearings and have a rebuttable presumption that they are aggrieved by a decision concerning another property.  The defendant may rebut the presumption by showing that the plaintiff’s claims are not interests that the Zoning Act is intended to protect.

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In some situations, a well-traveled path through another’s personal property may give rise to an easement over time.  In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach.  The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.beach-1328647-640x480-300x225

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions.  When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road.  Thereafter, the same developer was hired to develop the plaintiff’s subdivision.  The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road.  In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way.  Despite the sign, the defendants regularly observed people using the road to access the beach.

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It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners.  Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways.  The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property.  The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession.  Both parties appealed that decision to the higher court for review.gate

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road.  After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911.  The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways.  In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively.  The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.

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Many local zoning bylaws regulate the use of residential property in a town or municipality.  In a November 7, 2016 decision, the Massachusetts Land Court considered whether a local bylaw prohibiting airfields was invalid.  The plaintiffs in the case were ordered by the town’s building inspector to cease and desist operations at the private airfield on their property, on the ground that such use was not permitted under the town’s zoning bylaw.  That order was upheld by the Stow Zoning Board of Appeals and subsequently appealed to the Land Court.plane

The plaintiffs’ property was used to operate an aviation museum and housed a number of vintage aircraft in working condition.  The property also contained an airfield registered with the Aeronautics Division as a non-commercial private restricted landing area.  Many of the neighboring landowners objected to the noise and disruption caused by landing aircraft and aviation events held on the plaintiffs’ property, which prompted Stow’s building inspector to issue the cease-and-desist order prohibiting the use of the airfield.

Under Massachusetts law, a municipality must obtain the approval of the Aeronautics Division of the Massachusetts Department of Transportation before regulating the use or operation of aircraft on airfields.  In the current case, the bylaw at issue prohibited airfields entirely, everywhere in the town.  Although airport and landing field use had previously been allowed in many of the town’s districts, Stow’s zoning bylaw was amended in 1982 to delete it as a permitted use.  The town applied for approval of the prohibition in its bylaw some time thereafter.  The Aeronautics Division, however, denied approval to the extent that the bylaw sought to regulate aviation activity within its boundaries.

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Individuals may have the right to appeal a decision from their local zoning board if the matter directly affects them or their property.  The Massachusetts Land Court reviewed such an appeal in a January 3, 2017 case, in which the plaintiffs objected to a decision of the Zoning Board of Appeals.  The Board had granted a special permit allowing the defendants to rebuild a deteriorated garage on their property.  By issuing the permit, the Board approved a proposed structure that was higher than the original and in a different location of the defendants’ property.shed

On appeal, the Land Court first addressed the issue of standing by determining whether the plaintiffs had suffered some infringement of their legal rights.  The plaintiffs asserted standing based on noise, density, harm to the salt marsh and related flooding, diminished views and vistas, and diminution in value of their property.  After reviewing the evidence, the court concluded that the plaintiffs had standing based only on an increase in density but not on the other grounds asserted.  In particular, the court found that the new garage’s increase in height and the movement of residential activity closer to the plaintiffs’ property were sufficient to provide standing based on an increase in density.  The court went on to rule against the plaintiffs’ procedural arguments, holding that the Board’s actions in approving and issuing the special permit were not in error.

Finally, the court reviewed whether the special permit was granted based on an unreasonable, capricious, or arbitrary exercise of judgment in applying the land use regulation to the facts. Pursuant to the local bylaws, special permits are only granted if the applicant demonstrates that no undue nuisance, hazard, or congestion will be created, and there will be no substantial harm to the established or future character of the neighborhood or town.  In addition, the proposal must not be substantially more detrimental to the neighborhood, zoning district, or town.

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Property rights are often defined in a contract executed by the parties involved in the transaction.  In an August 1, 2016 decision, the Massachusetts Land Court examined a contract for a reverse mortgage in order to determine the right of the mortgage lender to foreclose.  The lender had used a standard contract to issue the mortgages, which did not explicitly incorporate the statutory power of sale under G.L. c. 183, § 21.  The lender filed an action with the Land Court, seeking a declaration that their reverse mortgage forms nevertheless include these rights.dollars

A reverse mortgage is a loan or line of credit available to a person over the age of 62 who has equity in real estate, typically the person’s home.  The loan provides the borrower with cash, usually in the form of a single lump-sum payment, and is secured by the borrower’s equity in the real estate.  The borrower does not make monthly repayments towards the loan, but instead, the loan is due and payable in full when the borrower dies, sells the home, or no longer uses the home as her principal residence.

Pursuant to Massachusetts law, if a mortgage provides for a power of sale, the lender, in exercising the power, may foreclose without obtaining prior judicial authorization.  In order for a lender to foreclose by exercise of the power of sale, the mortgage itself must grant the lender the statutory power of sale.  The statutory power may be incorporated into a mortgage in three ways:  (1) by including the exact language of the statute defining it in the text of the mortgage; (2) by referring to the definition, generally by use of the term “Statutory Power of Sale”; or (3) with language in the mortgage defining a power substantially similar to that of the statutory power.

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Some residential real estate deeds include provisions that limit or dictate what can be done with the property, often known as restrictive covenants.  In a recent case (Mass. Land Ct. Jan. 25, 2017), the Massachusetts Land Court considered whether an option to repurchase land, styled as a restrictive covenant, could be exercised after a substantial period of time.houses

The plaintiff in the case was a subdivision developer that had sold several lots to residential purchasers, including the defendants, for the purpose of building homes on the lots.  The plaintiff recorded a Declaration of Restrictive Covenants that applied to all of the subdivision lots, which contained a provision that allowed the plaintiff to repurchase any lot at the original sale price if home construction had not commenced within a year of the purchase.

In 2005, the defendants’ parents purchased a subdivision lot from the plaintiff, and a year passed without any construction.  They subsequently conveyed the lot to the defendants, who also failed to build on the lot.  In 2015, the plaintiff demanded that the defendants re-convey the property to the plaintiff, pursuant to the covenant contained in the Declaration.  The plaintiff filed an action with the Land Court, claiming its right to exercise an option to re-purchase the lot as a result of the defendants’ failure to commence construction within a year after their purchase of the property.

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Property conveyances are typically complex, and errors or ambiguities in the deed can lead to litigation years into the future.  This point is demonstrated in a recent case, Powell v. Ashley (Mass. Land Ct. Nov. 21, 2016), which concerns a 1973 deed that became the source of a years-long dispute between neighbors.house

In Powell, the defendants recorded a deed conveying the garage located on their property to the previous owners of the plaintiffs’ property in 1979.  The conveyance was problematic.  The deed was dated 1973, but the notary public’s commission indicated that the earliest it could have been witnessed was 1977.  The deed also lacked a metes and bounds description and was subject to an existing mortgage.  In addition, the previous owners lost their property through a foreclosure in 1978, and the property was sold a week before the deed was recorded.  Thereafter, the defendants resumed occupation and use of the garage.

In 2003, the plaintiffs brought an action in Land Court, seeking a declaration that they were the record owners of the garage, free of the defendants’ claims of record ownership and ownership by adverse possession.  While that litigation was ongoing, the plaintiffs also commenced an action in the Housing Court against the defendants.  After a hearing, the Housing Court entered judgment in the plaintiffs’ favor regarding record ownership of the garage.  The Land Court concluded that the Housing Court’s ruling was binding in the Land Court action on the basis of res judicata, a legal principle that prohibits parties from re-litigating the same issue.  The Land Court also held that since the defendants did not raise the defense of adverse possession in the Housing Court action, they were barred from arguing it in the present case.

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In a recent case before the Massachusetts Land Court, a real estate developer filed an action against the adjacent property owners and neighborhood association, claiming an easement for vehicular passage over their lots.  In Bucks Hill Realty, LLC v. Gill (Mass. Land Ct. Jan. 11, 2017), the developer-plaintiff sought a declaration that it had an express or implied appurtenant easement to use the road at issue to get between its parcel and the public street.  The plaintiff also asked the court to enjoin the defendants from interfering with its use of the road. neighborhood

In Massachusetts, the party asserting the benefit of an easement has the burden of proving its existence, its nature, and its extent.  A plan cited in a deed showing an easement becomes part of the contract as far as it may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.  When an ambiguity exists in a deed, contract, or other instrument, it is proper to look beyond it for meaning.

In Bucks Hill Realty, LLC, the parties’ lots were subject to a declaration of covenants, conditions, and restrictions.  The declaration referenced two plans, each of which showed two differing points of termination for the easement.  While the first plan depicted an easement that continued through the defendants’ land into the plaintiff’s lot, the later plan terminated the easement before it reached the plaintiff’s property.  Due to this discrepancy, the parties agreed that additional facts were required to determine the extent of the easement set out in the declaration.

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