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In some cases, there may be grounds to defend against a foreclosure on your home and bring a counterclaim to recover damages. In Fitchburg Capital, LLC v. Bourque (Mass. Land Ct. Nov. 14, 2016), the Massachusetts Land Court decided an appeal concerning issues related to the mortgage foreclosure on the defendant’s property. The plaintiff initially brought an action against the defendant to clear a cloud on title attributable to its mortgage foreclosure without having first obtained a judgment under the Soldiers and Sailors Civil Relief Act against the defendant. In related proceedings, the Supreme Judicial Court invalidated that foreclosure, finding that the mortgages on the property were obsolete and deemed discharged. The remaining issue for the land court in Fitchburg Capital concerned the defendant’s counterclaims against the plaintiff, one of which was for the conversion of rental income that the plaintiff had allegedly appropriated while it had possession of the property following the foreclosure sale.apartment for rent

The plaintiff argued that the defendant should be barred by the doctrine of judicial estoppel from seeking a claim for the conversion of rental income generated by the property because the defendant failed to report the claim he had against the plaintiff during his bankruptcy proceedings. Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding. A defense of judicial estoppel requires that the position being asserted in litigation must be directly inconsistent with the position asserted in prior proceedings, and the party must have succeeded in convincing the court to accept its prior position.

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In specific circumstances, the law will recognize a non-owner’s rights in another party’s land, which may arise in the form of an easement.  The Massachusetts Land Court recently addressed this issue when deciding a plaintiff’s claim of a prescriptive easement over her neighbor’s driveway.  In Dinino v. Newman (Mass. Land Ct. Nov. 7, 2016), the plaintiff originally sold a portion of her property to her daughter, who then sold it to the defendant in 2013.  The plaintiff alleged that she had an easement to drive over and park on the defendant’s driveway and continue beyond the driveway over a now fenced-off section of the defendant’s property to park in her own backyard, as she had been doing when her daughter owned the property.driveway

In Dinino, there was no express easement regarding the use of the parties’ respective property.  Nevertheless, a prescriptive easement is based on the adverse use of another party’s land, and it may arise without an express document, purchase, or grant.  To be entitled to a prescriptive easement, the plaintiff must prove her (1) continuous and uninterrupted, (2) open and notorious, (3) adverse, nonpermissive use of another party’s land (4) for a period of 20 years or more.  The essence of non-permissive use is a lack of consent from the true owner.  This adversity must manifest by clear and unequivocal acts so that notice to the owner could be reasonably inferred.

The dispute in Dinino arose when the defendant enclosed the rear of his section of the driveway by erecting a fence in 2014, shortly after he purchased the property from the plaintiff’s daughter.  Before the closing, the plaintiff’s daughter approached the defendant to see if he had any objection to their granting an express easement to the disputed area prior to the sale.  The defendant refused to buy the property if it was burdened with such an easement, so the plaintiff’s daughter continued with the sale of the property without the easement.

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When a local planning board makes a decision regarding a real estate matter, adversely affected landowners may be able to appeal and argue their case.  In Siok v. Planning Bd. of Ludlow (Mass. App. Ct. Oct. 31, 2016), the Appeals Court of Massachusetts reviewed a decision by a planning board, which had approved a developer’s petition to modify a subdivision plan by eliminating an unbuilt roadway known as a spur.  The plaintiffs were owners of an undeveloped, landlocked parcel abutting the subdivision and required access via the spur.  The plaintiffs appealed, arguing that the board exceeded its authority in granting the defendant’s new plan and that they had acquired an easement by estoppel over the unbuilt spur.  The decision was affirmed by the land court and subsequently taken to the appeals court.mailboxes

In Siok, the developer’s plan was originally approved in 2007.  It showed the spur extending from one of the roads in the subdivision to the land owned by the plaintiffs, but it did not require the spur to be built or require an easement to be granted or reserved for the benefit of the plaintiffs.  The spur road was, in fact, never built, and the plaintiffs had no access to their land through the subdivision.  In 2012, the developer sought to remove the spur from the plan, and the local planning board granted the request.  In doing so, the board granted a waiver of the requirement of a second means of access to a subdivision exceeding eight lots.

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In some cases, there may be restrictions or conditions affecting the title or use of real property. The Massachusetts Land Court recently decided a real estate dispute involving the validity of a lot size restriction on a parcel of land in Nair v. Nantucket Land Council, Inc. (Mass. Land Ct. Oct. 14, 2016). One of the issues before the court was whether or not the 1982 restriction on the plaintiff’s parcel had expired under Massachusetts law.books

In Nair, the lot at issue was deeded in 1982, with the defendant, a non-profit organization, named as the sole beneficiary. The deed contained a restriction on the minimum size and any division of that lot. No term or expiration date was set for the restriction, nor was there any provision made for its extension. Relevant to that restriction was the litigation surrounding the ownership of that lot and other adjoining and nearby land, since each of those cases was settled in return for the restrictions recorded in 1982. In 2012, the plaintiff and owner of the lot submitted a proposal to divide the lot to conform to a new re-zoning law. The defendant subsequently challenged the division of the lot.

Pursuant to Massachusetts statute, if a deed contains any unlimited conditions or restrictions on real property, it shall be limited to 30 years after the date of the deed or instrument. There are four exceptions to the 30-year limitation, one of which is the exception for gifts or devises for public, charitable, or religious purposes. In Nair, the defendant argued that the restriction on the lot was a gift for charitable purposes, and therefore, it was not subject to the 30-year time limitation provided by the statute.

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Beachfront property can involve interesting legal issues as a result of changing shorelines. Accretion occurs when the line between water and land is changed by the gradual deposit of alluvial soil upon the margin of the water. In a recent real estate case, Brown v. Kalicki (Mass. App. Ct. Oct. 20, 2016), the Appeals Court of Massachusetts addressed the question of whether accreted beachfront took on the status of registered land as it formed, or whether registered status must be obtained by amending the title in court proceedings.beach

In Brown, the plaintiff’s land was originally registered in the 1920s and 1930s. The boundary line was identified in the certificate of title as the Nantucket Sound. In the decades following registration, the size of the parcels grew substantially as a result of accretion. The plaintiffs filed a petition to establish their respective ownership rights in the accreted land. The defendants intervened in the action, claiming that they acquired prescriptive easements to use the beach area on the plaintiffs’ land. The plaintiffs responded that, pursuant to Massachusetts statute, the defendants could not obtain prescriptive rights in registered land. After the land court found in favor of the plaintiffs, the defendants appealed.

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The Appeals Court of Massachusetts found in favor of homeowners who were sued by their mortgage company after it failed to obtain the signature of the borrower’s spouse on the paperwork. In Salem Five Mortg. Co., LLC v. Lester (Mass. App. Ct. Oct. 13, 2016), the defendant filed a complaint against the plaintiffs, seeking to reform the parties’ residential mortgage. The superior court judge granted summary judgment in favor of the defendant, which was reversed on appeal.mortgage dispute

In Salem Five Mortg. Co., LLC, the plaintiffs, a married couple, took title to property as tenants by the entirety in a quitclaim deed in 2008. Although the plaintiffs took title jointly, the husband obtained the loan for the property in his name alone, and only he signed the mortgage document encumbering the property. In 2012, the defendant brought suit, seeking relief on four legal theories:  reformation of the mortgage on the ground of mutual mistake, reformation of the deed on the ground of mutual mistake, equitable subrogation of the wife’s interest to prevent unjust enrichment, and imposition of an equitable mortgage. The lower court held that the reformation of the mortgage was justified on the basis of mutual mistake and granted summary judgment.

In cases of mutual mistake in Massachusetts, reformation may be available when the other party knew or had reason to know of the mistake. The defendant, as the party seeking recovery for a unilateral mistake, must present full, clear, and decisive proof that a mistake occurred and that the other party knew or had reason to know of the mistake.

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The Supreme Judicial Court of Massachusetts recently decided an easement dispute involving a nature preserve and a neighboring landowner in Taylor v. Martha’s Vineyard Land Bank Comm’n (Mass. Oct. 11, 2016). At issue was whether the owner of the nature preserve could use an easement on the plaintiffs’ property to access a parcel of land that the easement was not originally intended to serve. The lower court ruled in favor of the plaintiffs, and the Supreme Judicial Court ultimately affirmed that decision, declining to modify the bright-line rule disallowing any use of an easement to benefit land to which the easement is not appurtenant.trail

In Taylor, the defendant owned and managed a nature preserve, which was comprised of various parcels of land purchased by the defendant in 1990. In 2010, the defendant created a hiking trail through its nature preserve, which it planned to open to the public. The trail began on a main road, crossed over the plaintiffs’ property by way of a 40-foot-wide easement, and proceeded across three parcels of the defendant’s land benefited by the easement. The trail then entered a fourth parcel owned by the defendant, which was not intended to benefit from the easement. The plaintiffs filed an action to prevent the defendant from using the easement as part of the hiking trail, arguing that it was improper for the trail to cross over the easement and continue onto the fourth parcel because the easement was not intended to serve that parcel.

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Ownership disputes can arise years after property was purchased or originally deeded. Speaking to this issue, the Appeals Court of Massachusetts released an opinion in the case of Knapp v. Powicki (Mass. App. Ct. Sept. 29, 2016).  Knapp concerned the ownership and easement rights over a proposed street located between two abutting lots conveyed decades ago.property map

The property was originally a large lot of farmland owned by the grantor. In 1926, the grantor constructed a house on one section, known as 95 Coolidge, the frontage of which contained the proposed street at issue. In 1933, the grantor created a second lot, 99 Coolidge, which the defendants currently own. In 1963, another lot, known as 111 Coolidge, was created and eventually conveyed to the plaintiffs. The proposed way runs between these two lots.

Over the years, the descriptions of the land and the proposed way changed in the deeds, which were not as careful as the original. At the time the deeds were executed, the language used would have been enough to demonstrate the grantor’s intent to retain ownership of the street and rebut any presumption that it passed to the buyer of the lot. However, in 1971, the Massachusetts Legislature enacted the derelict fee statute, which strengthened the common law presumption that a deed bounding on a way conveys title to the center of the way if the grantor owns it. The statute applied retroactively unless the title holder or predecessor changed position as a result of a court decision. Interpreting the current description in the deed, there were no words of reservation as required by the statute.

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Many times, increased development or changed uses of land are opposed by neighboring residential property owners. In Franson v. City of Woburn (Mass. Land Ct. Sept. 14, 2016), the Massachusetts Land Court decided a zoning dispute involving a development group seeking to construct 18 townhouses. The property at issue was located in a single family residential zoning district, directly abutting a business and commercial district. In order to build, the development group filed an application for the property to be rezoned to a district allowing for multifamily housing. After the city council approved the rezoning, residents in the surrounding neighborhoods challenged the rezoning as “spot zoning,” illegal contract zoning, and arbitrary and capricious.townhouses

Spot zoning occurs when one lot or a small area has been singled out for treatment less onerous than that imposed upon nearby, indistinguishable properties. Selective zoning of that kind violates the uniformity requirements of Massachusetts law and constitutes a denial of the equal protection under the law that is guaranteed by the state and federal Constitutions. Whether the approval of the development group’s application constitutes spot zoning turns not on which parcel has been singled out, or even on the effect on the parcel, but instead on whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act.

After reviewing the record, the land court found that the plaintiffs failed to meet the heavy burden of establishing that the rezoning approval conflicted with the Zoning Act and was therefore spot zoning. The court also found that based on the hearings and opinions presented, the city council reasonably concluded that rezoning the parcel of land at issue would further long-standing goals of providing additional housing inventory and public access to a nearby historic site. The court went on to explain that the record showed a rational and calculated effort by the city council to achieve long-standing objectives to advance the general welfare of the city. In addition, there was a practical basis for rezoning, since the property is located adjacent to a business-highway district and a shopping plaza, and changing the neighborhood would create a buffer between the residential and business zones.

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In a current real estate case, Massachusetts property owners brought an action seeking to annul a special permit granted by the town’s planning board for the construction of a 16-unit housing development. In Parker v. Freedman (Mass. Land Ct. Aug. 26, 2016), the plaintiffs contended the development would negatively affect their property and the surrounding neighborhood with increased traffic, noise, and congestion, and the plan would impermissibly allow the public onto their property, overburdening the right of way easement.trees

In Parker, the plaintiffs’ lot was between another single-family residence and the defendant’s lot. A right of way easement over a driveway partially located on the plaintiffs’ property allowed vehicles access across the lots in order to reach a public road. The special permit at issue provided for public access to the future condominium building over the right of way easement for the purposes of parking and using trails to be established on an open space parcel. The proposed development and the public trails, the plaintiffs argued, would drastically increase the intensity of the use of the driveway and overburden the right of way to their detriment.

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