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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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Changes in land use and the development of nearby property is often a cause of concern for residential homeowners.  In an April 19, 2018 Massachusetts real estate case, the plaintiffs challenged a zoning board’s decision to grant a special permit to a developer, the defendant in the case.  The special permit allowed for the subdivision of nine acres of woodland into undersized lots.  The plaintiffs appealed the decision to the Land Court, arguing that the requirements for a special permit had not been met.  drawings

The defendant in the case sought to subdivide its property into 14 single-family residential lots.  Although it was possible to divide the property in a way that would conform to the minimum lot area requirement under the local zoning ordinance, the resulting lots would be awkwardly formed with pigtail-shaped areas to have a sufficient lot area.  The defendant thus preferred an alternative plan, which would allow for evenly shaped, compact lots that would be undersized.

The defendant sought a special permit under a zoning ordinance that allows for reduced lots if all of the requirements provided were satisfied.  One of the requirements is that the original property must have existed in its current form prior to 2013.  The defendant’s property, however, was five separate lots in 2013 and later combined as one.  In addition, a piece of one of the five lots was conveyed to another owner so that even when considering the five lots together, it was not in the same configuration prior to 2013.

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For many homeowners, an unexpected legal claim against their property is unsettling.  A Massachusetts real estate attorney can explain the options available and represent homeowners in the proceedings.  In an April 6, 2018 case, homeowners sought to prevent the town from using a path on their property to reach a local pond.  The homeowners argued that any easement held by the town to use the path had been abandoned.pond

The homeowners in the case owned property in a subdivision that was laid out on a plan recorded in 1914.  That plan, however, had virtually no relationship with how the area actually developed.  Many of the lots were combined into larger parcels before houses were built on them, while others were made a part of extensive conservation areas.  As a result, many of the roadways on the plan were never built or used, such as the path across the plaintiffs’ property.

The path at issue had never been used as a right of way to the pond by anyone, since the path was located on the plaintiffs’ front lawn, used as part of their driveway, and partially blocked by a stone wall.  Nevertheless, the town, which had always used other routes to reach the pond, contended it had the right to use the path for access to the pond.  The town’s claimed right of access was based solely on the 1914 subdivision plan.

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After a land survey revealed new information regarding the boundary line between two lots, two Massachusetts neighbors disagreed over how to handle ownership of that area.  In an April 3, 2018 Massachusetts real estate case, the plaintiff filed an action in the Massachusetts Land Court asserting that she had acquired adverse possession of the area in dispute.  A two-day trial was conducted, in which the parties presented evidence to support their positions.road

The plaintiff in the case purchased her lot in 1985.  A dirt driveway was located on her lot at the time she moved in, and in 1987 she had it paved.  However, a section of the driveway, a sloped area at the bottom of the driveway, and a wooded area, all of which the plaintiff believed were on her property, in fact were encroaching on two other lots owed by another individual.  Eventually, that individual sold one of the lots to the defendants in 2007.  As soon as they moved in, the defendants began clearing and maintaining the wooded and sloped areas, apparently without knowledge of the exact boundary of their own lot and without knowledge of the existence of the second lot retained by the individual from whom they purchased their lot.

The relationship between the plaintiff and the defendants began to deteriorate after the plaintiff began the teardown and construction of her house in 2011.  Concerned about disruption from the construction, the defendants conducted some research and discovered the existence of the seller’s second lot.  The defendants reached out to the seller and acquired the second lot in 2011.  The defendants then hired a surveyor and marked the boundary of their property.  After a heated argument, the plaintiff continued construction on the property and additionally filed a claim for adverse possession of the area in dispute.

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In Massachusetts, land use and ownership can be complicated after a parcel of property has passed through several owners over the course of many years.  In a March 3, 2018 case, the plaintiffs filed an action claiming that they had established a prescriptive easement to pass over part of the defendant’s land.  The matter was decided by the Massachusetts Land Court on summary judgment motions.green circle

The plaintiffs in the case owned a parcel of land that abutted property owned by the defendants.  The defendants’ property consisted of two parcels.  Originally, the two parcels were a single piece of land owned by another individual.  The original owner divided the land into two parcels in 1995, conveying one parcel to the defendants and keeping the other parcel for himself.  The plaintiffs and the original owner engaged in litigation over the parcel he retained until 2012, when the house on the property was torn down.  Eventually, the property was foreclosed upon, and the defendants purchased that parcel from the original owner as well.  The plaintiffs then asserted a claim that they had established a prescriptive easement to pass over a portion of the defendants’ land.  Specifically, the disputed area consisted of a section of the circular driveway on the defendants’ property, located on the parcel that had initially been retained by the original owner.

In Massachusetts, to establish a prescriptive easement, the plaintiffs must prove open, notorious, adverse, and continuous or uninterrupted use of the defendant’s land for a period of at least 20 years.  The defendants in the case argued that the plaintiffs could not establish their prescriptive easement claim because their use of the defendants’ property was permissive, and otherwise it was merely intermittent or sporadic.

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Local municipalities are primarily responsible for the upkeep of public county roads, a duty that would be burdensome for many average residents.  For this reason, the plaintiffs in a March 12, 2018 Massachusetts real estate case sought to establish that the road bordering their property was a public way.  The plaintiffs filed an action against the town and highway superintendent, arguing that the road was a public way, thereby requiring the town to repair, maintain, and remove snow for its entire length.road

In Massachusetts, land acquires the status of a public way if it is:  (1) laid out by the public authority pursuant to statute; (2) claimed by prescription; or (3) prior to 1846, dedicated by the owner to permanent and unequivocal public use.

In the case, the plaintiffs first contended that the road at issue was laid out by public authority.  Specifically, the plaintiffs alleged that the road was part of another road that had been explicitly laid out by the county commissioners in 1768.  The court rejected the argument, noting that the description of the public road in the record laid out by the county commissioners did not include the direction of the road at issue.

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It is not uncommon for mortgage lenders to assign or transfer their original loan to another financial institution, although it may be confusing to borrowers.  For homeowners involved in a mortgage dispute, guidance from a Massachusetts real estate attorney can alleviate the complexity regarding their rights against each bank.  In a March 15, 2018 case before the Appeals Court of Massachusetts, an improperly documented mortgage was the subject of a declaratory judgment sought by the plaintiff, as an agent of a bank, against the homeowners.foreclosure

The first mortgage on the defendants’ property was initially obtained in 2000.  In 2001, they refinanced that loan.  To do so, one of the defendants executed another mortgage with a second bank in order to satisfy and discharge the original mortgage.  Shortly thereafter, the second bank executed a blank assignment of the new mortgage and loan, which was subsequently altered to fill in the name of yet another bank, the assignee.

The plaintiff in the case was appointed as the servicer of the assignee bank’s mortgage loans in 2002, including the defendants’ mortgage, which was listed in a schedule with a pool of other loans assigned to the plaintiff.  In 2003, the defendants stopped making payments on their mortgage, and the plaintiff commenced an action against them in 2007.  In order to proceed, the plaintiff needed a declaratory judgment that the improperly documented mortgage was equitably subrogated to the prior first mortgage.  Several issues in the case were decided, appealed, and remanded before again returning to the Appeals Court of Massachusetts in 2018.

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In the real estate market, the zoned use or designation of a parcel of property can significantly affect its monetary value.  In a March 8, 2018 land use case, the property at issue was estimated to be worth $250,000 if it was a buildable lot, but only around $85,000 if the property had to be kept vacant.  After a local zoning board ruled that a single-family home could be built on the lot, the matter was appealed to the Massachusetts Land Court.cabin

The plaintiff in the case jointly owned the property at issue with his siblings and also owned the neighboring parcel of land.  The land court opined that while a decision allowing for a single-family home would typically be desirable to the property owners, the lower value attached to a non-buildable lot would allow the plaintiff to buy out his siblings’ interest in the parcel.  Accordingly, he brought the subsequent appeal.

The primary question for the land court was whether a local by-law allowed for a new residence to be built on the property at issue.  The relevant section of the by-law provided that, with respect to lawful, non-conforming residential structures, certain alterations as identified in the by-law should essentially be issued an automatic permit.  Specifically, in order for a building permit to be issued, there must be a non-conforming single-family structure on the property, the proposed alteration must not constitute a change in use and comply with current setback, building coverage, and height requirements, and the existing structure must be located on a lot that complies with the same requirements or has insufficient frontage.

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In Massachusetts, beach access can be a significant feature of a residential real estate property.  In a March 5, 2018 case, the primary issue before the Appeals Court of Massachusetts concerned the ownership of, and access to, a beach situated near the parties’ homes.  The Land Court had ruled that the plaintiffs held easement rights to access and use the beach by a 1929 deed and by implication.  The defendants appealed the Land Court decision to the higher court.path

An appurtenant easement allows for the use of a servient parcel of land in order to benefit a dominant parcel of land and the possessors of that land.  Appurtenant easements attach to and run with the land and consequently benefit subsequent possessors of that property as well.  If the appurtenant easement is expressly granted by deed, the deed must only reasonably identify the servient land, the dominant land, and the easement itself.

In the case, the 1929 deed expressly granted easement rights to the owner and subsequent owners.  It identified the easement as granting recreational use of the beach and shore located on the opposite end of the servient estate, currently owned by the defendants.  The defendants argued, however, that the plaintiffs were outside the record title chain and were not grantees of the easement.  The appeals court stated that appurtenant easements are not required to be recorded in the grantees’ title, and the successors of the dominant estate need not be specifically identified at the time of conveyance.  Instead, it is only required that the dominant and servient estates be reasonably ascertainable.  Since the plaintiffs possessed property comprising the dominant estate at the time of the May 1929 deed, therefore, they held easement rights to use the beach.

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