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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For many owners of residential beach homes in Massachusetts, their ocean view is an important and enjoyable part of their property.  In order to make certain changes to the home, therefore, local zoning laws generally require a special permit or variance.  In a July 12, 2019 Massachusetts real estate case, the owner of a beach house opposed the building permits granted to her neighbors for a tear-down and rebuild of a new residence.  The matter came before the Land Court on appeal by the plaintiff, following the decision of the local zoning board.

Both of the parties’ properties were on a peninsula near the ocean.  The plaintiff resided in a single-story home with a deck.  The defendants reportedly tore down an existing, single-story, non-conforming residence and built a new two-story home in its place.  Although the plaintiff’s view of the ocean from her deck became partially obstructed by the second story of the defendants’ new house, the height of the house fully complied with current zoning.  Other aspects of the house, however, were not.

On appeal, the plaintiff argued that the defendants’ new home increased the nonconformity of the floor area, open space, and setbacks beyond the limits allowed under the town zoning bylaw.  While the defendants had obtained a building permit to construct the house, the plaintiff asserted that the defendants were required to obtain a special permit or variance for the new build.

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Local zoning regulations generally promote the safety and general welfare of the community, while also encouraging the most appropriate use of the land.  In a July 11, 2019 Massachusetts real estate case, the plaintiffs sought to overturn a decision by the local planning board that waived the requirements of a zoning regulation.

The defendants in the case had applied for approval of a two-lot, two-residence subdivision.  They also proposed to extend the right-of-way running over the plaintiffs’ lot.  Under the applicable zoning regulation, all owners of all land included in the subdivision proposal are required to join in the application.  Due to the plaintiffs’ ownership of the right-of-way, which was included in the defendants’ subdivision plan, the regulation required the plaintiffs’ signature.  However, the local planning board waived this requirement and approved the defendants’ application.  The plaintiffs subsequently appealed the board’s decision to the Land Court.

On appeal, the Land Court concluded, as an initial matter, that the plaintiffs did not have standing to bring the appeal.  Although the plaintiffs were afforded the presumption of being aggrieved, as their property abutted the defendants’ land, they did not establish any specific and substantiated injury that would result from the board’s decision.  Nevertheless, the court went on to consider the issue of whether the applicant waiver was improper.

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Massachusetts property transfers involve legal considerations that, if not taken into account, may have unintended consequences.  A July 3, 2019 case before the Appeals Court of Massachusetts illustrates how some of these issues may arise.  The case centered around the parties’ oral agreement for the purchase and sale of a house, and the subject of their legal dispute was the defendants’ failure to assume the mortgages on the property.

In late 2010, facing possible foreclosure on his house, the plaintiff in the case reportedly entered into an oral agreement to sell his house to the defendants.  In exchange, the plaintiff would receive a cash payment, the defendants’ assumption of the mortgages on the property, and payment of all property-related expenses.  In April of 2013, over two years after the defendants took possession of the house, and despite their good faith efforts, they failed to complete the assumption of the mortgage.  The plaintiff then filed an action in Land Court seeking to rescind the transaction and cancel the deed to the defendants.

In Massachusetts, rescission is a potential remedy for breach of contract, but rescission is not an available remedy for any and all breaches.  Generally, rescission is disfavored as a remedy for a mere failure to perform a promise.  To justify the remedy, a plaintiff seeking rescission must show that the breach deprived him of the essence of the agreement.  In the absence of fraud, the conduct of the defendant must be fundamentally adverse to the purpose of contact in order to be a ground for rescission of it by the other party.

In Massachusetts, land owners may file a petition in Land Court to determine the validity of, or the extent to which, a zoning bylaw or land use ordinance may affect the use, improvement, or development of their land.  In a July 1, 2019 Massachusetts real estate case, the plaintiff brought an action against his town, seeking a declaration as to how its zoning bylaw applied to his property.  Because the issue turned on undisputed facts, the Land Court decided the case on summary judgment.

The local ordinance at issue required that any type of residence must be setback at least 10 feet from a property line and at least 20 feet from the street.  However, an exception was provided for properties with existing buildings, if they were located less than 10 feet from the property line, or less than 20 feet from the street.  Such properties are allowed a setback equal to that of the nearer building line, as established by the existing buildings.

The plaintiff in the case owned property with an existing house and barn, among other structures.  Having reportedly been granted approval to divide his property into six single-family lots, the plaintiff wanted greater flexibility to develop the 6.5-acre property.  Correspondingly, if the bylaw exception applied, he would not be restrained by the 10-foot property line and 20-foot street setback requirements.  The issue in the case, therefore, was whether the house and barn created a nearer “building line” under the bylaw, thus exempting the plaintiff’s property from the bylaw’s setback requirements.

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In Massachusetts, there are two systems of tracking property title records.  Recorded land makes up the majority of property title record keeping, while a smaller percentage of properties in Massachusetts are governed by the registered land system.  Massachusetts guarantees title to registered land and as such, the requirements to register land are stricter.

As illustrated in a June 1, 2018 Massachusetts real estate case, there are advantages to the strict protections afforded to a property owner under the land registration system.  The dispute centered around the use and ownership of two parking spots in a condominium building.  The prior owners of the plaintiffs’ property had entered into an easement agreement allowing them to park two vehicles on a portion of their next-door neighbors’ registered land.  However, the easement agreement was not accepted for filing with the Land Court because it was not properly and fully executed, and a corrected, executed document was never registered.

In 2001, the plaintiffs purchased a condo unit with the understanding that they were acquiring an easement for the two parking spaces on the registered land next door.  For the next fourteen years, the plaintiffs parked in the spaces, until the defendants purchased the next-door neighbors’ property.  The plaintiff filed an action seeking to amend the certificates of title to both parties’ land to reflect a parking easement on the defendants’ property for the plaintiffs’ use.

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Constructing a dwelling on a vacant lot usually involves some legal considerations, as well as approval from the local Massachusetts zoning authority.  Individuals who are denied a building permit may appeal to ensure that the matter was correctly decided under the law.  In a June 3, 2019 Massachusetts property case, the plaintiff brought an appeal before the Land Court after she was denied a building permit to construct a single-family home on her land.  The central issue in the case was whether the doctrine of merger precluded her lot from being treated as a preexisting, nonconforming lot exempt from local zoning ordinances.

The plaintiff’s lot was conveyed to her by her grandfather, who had also conveyed a second lot to the plaintiff’s sister.  The two lots were divided by a private way that continued through the subdivision.  The local zoning board concluded that the two adjacent lots had merged when they were held under common ownership by the plaintiff’s grandfather.  As such, the zoning board determined that the plaintiff’s lot did not meet the requirements of a preexisting, nonconforming lot.  The zoning board therefore denied the permit, finding that the lot was unbuildable under the requirements of the local ordinance and not subject to any exemption as a preexisting, nonconforming lot.  The plaintiff, in turn, asserted that her lot was entitled to grandfathering protections and argued that the private way running between the lots precluded merger.

Massachusetts law protects some preexisting lots from having to comply with increased area, frontage, width, yard and depth requirements of subsequently enacted zoning ordinances in some situations.  To fall within the exemption provided under the statute, however, the lot may not have been held in common ownership with any adjoining land.  In other words, the lot cannot have merged with any other lot, or it may lose its grandfather status.

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In many  adverse possession cases, the plaintiffs’ claim to property arises from a long-held, yet mistaken, belief that they own the land at issue.  This situation was presented in a May 28, 2019 Massachusetts real estate case before the Land Court.  The plaintiffs in the case filed an action against their neighbor, claiming title by adverse possession to a strip of land they had long believed was part of their property.

The land at issue in the case was a narrow, 13 foot wide strip of land on the side yard of the plaintiffs’ residence.  The plaintiffs’ property consisted of two lots, both of which had been owned by their parents, and before that, their grandparents.  From the time the second lot was conveyed to the plaintiffs’ family in 1949, they believed that two iron surveyors’ pipes marked the lot’s side boundary.  They cleared, used, and improved that area in the same ways they did for the rest of their property, fully incorporating it.

As a matter of record title, however, the plaintiffs were wrong about their ownership over the strip of land.  A survey of the lot conducted in 1948 had erroneously shifted its boundaries, and the two surveyors’ pipes were approximately 13 feet beyond the true record boundary of the second lot.  In fact, the record owner of the strip was the plaintiffs’ neighbor and the defendant in the case, who had acquired the adjacent lot in 1991.  The plaintiffs subsequently filed a claim in Land Court seeking a declaration that they acquired title to the strip by adverse possession.

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Making a significant change to residential property in Massachusetts typically requires approval from the local zoning authority.  That decision may be subject to several levels of appeals by the homeowners and other parties aggrieved by the outcome.  Proceeding with the changes, despite a pending appeal, may cause complications further down the road, as illustrated in a May 30, 2019 Massachusetts real estate case before the Court of Appeal.

In 2008, the owner sought a building permit to construct a 6,800-square-foot residence on his property overlooking Cape Cod Bay, and to convert the existing cottage into a studio.  The proposal was put forth as an alteration of the existing cottage, which was a pre-existing non-conforming structure.  The permit was approved, but a group of individuals filed multiple appeals.  Nevertheless, the owner began construction of the residence immediately, despite the Land Court’s warning that he was proceeding at his own risk.

In 2011, the Court of Appeals revoked the building permit, holding that as a matter of law, the house could not be considered an alteration of the existing cottage.  After that decision, the local building commissioner issued an order requiring that the house be torn down, which the owner appealed.  Ultimately, the owner and the town settled the matter, and the house was allowed to stand in exchange for a significant cash payment to the town and a multi-million dollar payment characterized as a charitable gift.

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