Published on:

A dispute over parking may become a legal issue if it interferes with the property rights of one or more individuals.  For many condo residents, legal claims pertaining to their building may only be asserted by the owner, which is typically a condominium trust.  In such cases, the interests of the condominium trust must be represented by a Massachusetts real estate attorney during the legal proceedings.

In a January 7, 2018 case, the Land Court determined whether the plaintiff had the right to park on abutting property owned by the defendant. The plaintiff in the case was an individual owner of a residential condo unit.  She was also a trustee of the condominium trust that owned the condo building.  She filed her action in Land Court, without the representation of an attorney, in both her individual capacity and her capacity as a trustee.

In Massachusetts, while a person may represent oneself in most legal proceedings, only a member of the bar may represent another person or entity before a court.  Therefore, as an initial matter, the Land Court ruled that the plaintiff could not bring claims on behalf of the trust pro se, and that those claims must be dismissed. The court then went on to address her individual claims against the defendant.

Continue reading →

Published on:

It is not uncommon for issues regarding property ownership to arise after the death of one of the co-owners.  In a December 19, 2018 Massachusetts real estate case, the Land Court decided a partition action among three brothers who co-owned a residential property.  During the course of the legal proceedings, however, one of the co-owners died, calling into question how the property should be divided.

When the partition action was initially filed in Land Court, the brothers held the property as joint owners with right of survivorship.  The partition would have terminated the joint tenancy with right of survivorship.  Therefore, had all three lived, a partition by sale and subsequent division of the proceeds would have provided one third of the net sale amount to each brother.

After the death of the one of the brothers during the partition proceedings, however, the Land Court was faced with another issue.  The question for the court was whether the net proceeds should be split in half between the two remaining survivors, or whether the partition proceedings had ended the joint tenancy and converted it to a tenancy in common, in which case the two surviving brothers would receive one third of the sale proceeds and the estate of the deceased brother would receive one third.

Continue reading →

Published on:

Litigating ownership disputes in Land Court may be a way to establish clear title to property.  In a November 14, 2018 Massachusetts real estate case, the plaintiff filed an action asserting his rights in a private way against the defendant, who was the owner as a matter of record.

The plaintiff in the case owned up to the centerline of the road at issue, where it was adjacent to his home.  The defendant’s mother had owned the other portion of the road, where it was adjacent to her home.  The defendant’s mother had transferred her interest in the road to the defendant pursuant to a deed.  However, the adjacent lot was conveyed to a different owner.

The plaintiff filed an action in Land Court, asserting several claims to establish ownership.  One of the claims sought a declaratory judgment that the defendant’s interest in the way was invalid, because it could not be separated from the adjacent property.  The plaintiff also contended that the defendant’s mother failed to reserve any rights in the way when she sold the adjacent lot, and therefore had no right to convey any interest in the road.

Continue reading →

Published on:

Individuals seeking to improve a private road will generally need the consent of the owner, even if they have some property rights to use the road.  In a December 4, 2018 Massachusetts real estate case, the plaintiffs initiated legal action against the defendant in Land Court after he refused to allow them to pave the sole road providing access to the parties’ homes.  The defendant did not dispute that the plaintiffs held some type of an easement to use the road; however, he argued that they did not have the right to pave the road over his objection.

The parties owned seasonal homes on a secluded peninsula, which were accessible via one gravel-surfaced, private roadway.  The defendant was the fee owner of the gravel road, which was located on his property.  The roadway led to the plaintiffs’ house and continued past the defendant’s own house, serving a total of ten homes on the peninsula.  The plaintiffs wished to pave the road for easier travel and less damage to their vehicles, and because they believed it was a reasonable improvement.  The defendant believed that paving the road was unnecessary, and argued that doing so would worsen the road drainage problems, lead to non-residents’ use of the private road, allow cars to drive faster through the area, and overall change the feel of the small neighborhood.

Following a trial, the Land Court found that the plaintiffs had a prescriptive easement.  Their prescriptive easement was created by continued use of the road for the required statutory period.  Accordingly, the extent of their easement was limited to the use through which it was created, i.e., travel to and from their house.

Continue reading →

Published on:

New construction and major changes to property may have an unwelcome impact on other homeowners.  Whether or not a person can formally contest a proposed change, however, depends on if they have standing to bring a legal action.  The question of standing was one of the main issues in a November 15, 2018 Massachusetts real estate case before the Court of Appeals.

The defendants in the case had received a variance from the local zoning board, which allowed them to go forward with the proposed construction of a home on a vacant lot they owed.  The vacant lot was adjacent to an existing house, also owned by the defendants.  The plaintiffs’ property abutted and was adjacent to the vacant lot on the other side.  In securing the variance, the proposed house would be closer to the plaintiffs’ property than otherwise allowed.

The plaintiffs filed an action in Land Court challenging the variance.  Ultimately, the Land Court concluded that the defendants’ two lots had merged, and as such, a variance could not issue to allow construction of a second home on the property.  The defendants appealed, arguing that the plaintiffs lacked standing to bring the action.

Continue reading →

Published on:

A poorly delineated property boundary in a densely populated neighborhood is a condition that often causes tension between neighbors.  This situation is what eventually led to the dispute between a business condominium association and a residential homeowner in a November 19, 2018 Massachusetts real estate case.  The defendant in the case lived behind the plaintiffs’ building, which was occupied by four commercial businesses.

A cinder block wall erected by the defendant’s father in 1976 had given rise to the misunderstandings that formed the basis of the dispute.  To delineate the higher grade of the driveway and prevent vehicles from falling off the side, the defendant’s father had made a wall with cinder blocks and stacked railroad ties.  The wall, however, had the appearance of a boundary fence.  The plaintiffs’ building was constructed thereafter, in 1981.  A land survey had recently confirmed that the defendant was the record owner of a narrow, triangular strip of land near the back of the plaintiffs’ property.  The plaintiffs then filed an action in Land Court for adverse possession, claiming ownership of the strip.

In Massachusetts, title by adverse possession can only be acquired with proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for an uninterrupted  period of twenty years.  After hearing testimony from witnesses and viewing the disputed area, the Land Court concluded that the plaintiffs had not established adverse possession of the entire disputed area.  The court explained that although a fence is ordinarily sufficient to demonstrate an adverse enclosure of land, the cinder block wall did not run the full length of the boundary, nor did it block any access to the disputed area.  The court also noted that the defendant regularly went over the wall for materials that he stored in the disputed area.

Continue reading →

Published on:

Resolving zoning violations may require compromise in unusual situations.  In a November 9, 2018 Massachusetts real estate case, the Land Court was tasked with deciding the fate of a house that was constructed in violation of the local zoning bylaws.  The plaintiff in the case owned a single family residence across the street from the house at issue.  The house had been constructed despite the plaintiff’s objections, which were timely filed.  The defendants, with full knowledge of the pending litigation, purchased and moved into the house with their children.

It was undisputed that neither the building permit for construction of the house, nor the subsequent certificate of occupancy, should have been granted.  The lot on which the house was built did not meet the depth requirement, as it was more than fifty feet short of the 125 feet demanded by law.  As such, the defendants applied for a variance, which was granted by the local zoning board.  The lot, however, did not meet the criteria for such a variance.  The plaintiff subsequently challenged the variance, and a trial was required to determine whether the plaintiff had standing to do so.

Standing requires the plaintiff to show that he has or will suffer an injury related to an interest that is protected by the applicable zoning law, and which is special and different from the general concerns of the larger community.  The Land Court ruled that the plaintiff did have standing to challenge the variance, but only from a single impact.  Namely, the headlights shining in the windows of his home at night from cars exiting the defendants’ driveway.

Continue reading →

Published on:

Surveying historical boundaries of lands in Massachusetts can be a complex task.  It may require searching and deciphering markings, monuments, and records that are many years old.  In a November 5, 2018 Massachusetts property case, the Land Court faced several obstacles as it attempted to determine an accurate boundary line between two parcels of land.  The case originated when the plaintiff, seeking to resolve the question, filed an action to try and quiet title against the owners of the adjacent parcel.  The defendants, in turn, filed multiple counter-claims against the plaintiff.  The parties ultimately agreed to narrow their dispute into a single issue to be decided at trial, namely, the boundary between the properties.

The lands had been previously owned by two brothers, who had inherited them in 1942 as a large, single tract of property.  In 1961, the brothers divided their lands into two parcels, which became the lands currently owned by the parties in the case.  The brothers decided to skip the expense of a surveyor, however, and described the boundary line between their lands themselves, using monuments and markers.  In particular, the brothers referenced an old road marked by pipes and stones, a brook that had disappeared long before 1961, a bridge that no longer existed, and a heap of stones on a ledge of a ravine.

In order to determine the entire boundary between the formerly unified lands, the Land Court needed to find the exact locations of the ill-defined monuments described in deed.  To identify the location of the old road, the court reviewed a plan prepared by a surveyor in 2013.  The court concluded that the plan accurately depicted the road, noting that its location corresponded with maps from 1980 and 1986.  Although the maps were not professionally surveyed, they were prepared pursuant to state regulations for the plaintiff to submit a state-mandated forest management plan.  The bridge and brook were located by a geotechnical engineer and found to be consistent with the defendant’s testimony about statements that the prior owner made concerning the property line.

Continue reading →

Published on:

Acquiring legal title to real property can be complex, particularly if the land is old or abandoned.  In unusual situations, the knowledge of a Massachusetts real estate attorney may be beneficial to achieve your goals.  In an October 26, 2018 case, the plaintiffs sought to obtain title to the vacant, residential lot next to their property.  Current ownership of the vacant lot was unclear, as the owner named in the 1903 deed had died long ago.  The plaintiffs, however, succeeded in acquiring a 25% share of the property.  They then filed a petition in Land Court seeking a partition of the lot, naming 47 respondents who were or could be the heirs, devisees, or other successors in interest to the late owner.

Under Massachusetts law, any person, except a tenant by the entirety, owning an undivided legal estate in the land may seek a partition, with a presumption that such partition should result in the physical division of land.  The plaintiffs in the case did not intend to splinter the vacant lot, but rather, sought to use the partition statute as a means to obtain title to the entire lot, free and clear of its other owners.

After serving all of the co-owners with notice of the partition action, the plaintiffs filed a motion for default judgments against 39 co-owners who did not respond.  Collectively, these 39 individuals owned a 55% interest in the lot.  The court granted default judgments.  Eight co-owners, collectively holding almost 20% interest in the lot, participated in the proceedings.  The court determined that the plaintiffs were entitled to a partition and appointed a commissioner to make recommendations as to the division of the lot.

Continue reading →

Published on:

The legal rights of Massachusetts condominium owners are provided by state laws and may be further defined in the Master Deed to their condo.  For many people, consulting a Massachusetts real estate attorney is helpful to gain a better understanding of these documents and laws.  An October 5, 2018 case between condo unit owners and a condominium developer illustrates the significance of the Master Deed in determining the rights and responsibilities of the parties.

The case arose after the developer recorded two amendments to the Master Deed, which had the effect of permitting construction of 56 additional condo units, doubling the current occupancy.  The plaintiffs contended that the amendments were invalid because the defendant no longer had authority to amend the Master Deed without approval of a majority of the unit owners.

In Massachusetts, the Condominium Act provides the framework for the development of condominiums.  The Act explicitly protects unit owners by mandating their consent to any alteration that materially affects their undivided interests in the common areas.  Accordingly, any such alteration can be achieved only by an amendment to the Master Deed.  There is an exception, however, for phased condominium projects like the one at issue in the case.  Unit owner approval is not required to add new units for a phased project if the Master Deed provided for them at the time it was recorded, and made it possible to determine each unit’s interest after the additions.

Continue reading →

Contact Information