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Restrictions, often known as covenants, bind landowners to specific provisions concerning their property.  In a December 5, 2017 Massachusetts real estate case, the Appeals Court considered whether certain restrictions on land had expired, or whether the restrictions had been legally and effectively extended.  The plaintiffs in the case filed an action seeking to enforce the restrictions against the defendants.  After the lower court concluded they had expired and ruled in favor of the defendants, the plaintiffs appealed.houses

The original developer of the land had executed and recorded an agreement providing protective covenants and easements for future owners of the lots in 1980.  Thereafter, the developer sold off the lots, subject to the agreement that limited construction on each lot to one single-family dwelling with a two- or three-car garage, for a period of 30 years.  The agreement also provided that the covenants may be amended or revoked by the agreement of two-thirds of all of the owners of the lots.

In 2001, more than two-thirds of the lot owners executed an agreement to extend the covenants until 2010, and they recorded the extension in 2002.  The agreement also provided that the covenants could be extended for further periods of not more than 20 years by the agreement of two-thirds of the lot owners.  When the plaintiffs filed their action to enforce the restrictions, the defendants argued in response that the restrictions expired in 2010, after 30 years.

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Confusion over boundary lines and property ownership can eventually lead to a legal action filed before a court.  Many Massachusetts adverse possession claims are argued before the Massachusetts Land Court, which shares jurisdiction with other courts over most real property cases in the state.  In a August 29, 2017 decision, the Land Court considered the plaintiffs’ claim that they had acquired portions of the defendant’s neighboring property, which consisted of a narrow strip of land bordering their lot and a concrete pad adjacent to that strip.snowy brick wall

In Massachusetts, title by adverse possession can be acquired if the claimant establishes, with clear proof, non-permissive use, which is actual, open and notorious, exclusive, and adverse for a period of 20 years.

The strip of land at issue in the case contained a pathway, retaining walls and low stone structures, a fence, and vegetation planted by the plaintiffs.  The Land Court found that the plaintiffs’ improvements and maintenance of the pathway and planting bed area were sufficient to constitute actual use for the purposes of adverse possession.  Specifically, the plaintiffs’ construction of a rock wall, retaining walls, and fence were permanent improvements to the property ordinarily associated with ownership.  The court also held that the fence and stone walls surrounding the strip were sufficient to show that the plaintiffs’ use of the area was open and notorious, thereby putting the record owner on notice of their claim to the area, as well as exclusive.  The court explained that the fence enclosed the cleared pathway and planting bed area as if it was an extension of the plaintiffs’ property.  Finally, evidence that the plaintiffs had used the strip of land since they had moved into their house in 1982 satisfied the 20-year required period of possession.  Accordingly, the court ruled that the plaintiffs had established their ownership of that narrow area by adverse possession.

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Many Massachusetts property owners will discover that their property lines were drawn hundreds of years ago, with boundaries that are not clearly described or marked in the original and successive deeds.  A Massachusetts real estate attorney can provide legal guidance regarding disputes that arise under these circumstances.  An August 18, 2017 case demonstrates this issue in a land action between a Church and local Town.cemetery

Most Massachusetts towns were chartered before church and state were separated in 1833, when towns were chartered in order to support a church congregation.  In the case, the Church was built on land conveyed in 1743.  At issue was the ownership of the land on which the adjacent cemetery was located.  The dispute arose after the Town announced its intention to move the cremains buried in one portion of the cemetery to another area in the cemetery.  The Town asserted that it has record title to the cemetery through the 1743 deed.  The Church also claimed that it holds record title pursuant to the 1743 deed, an 1899 deed, or in the alternative, through adverse possession.

Since the case involved the interpretation of conveyances in 1743 and 1899 by people who were no longer living, the parties agreed to present their arguments on a case-stated basis with the court allowed to draw appropriate inferences from only the available evidence and make its ruling.  In these types of cases, the parties agree on all of the material facts from which the judge may draw inferences.

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Building a dwelling on your own property typically requires a special permit or approval from a local zoning board.  That decision can be appealed, as the plaintiffs appealed the denial of their building permit application in a November 2, 2017 Massachusetts zoning case before the Land Court.  The plaintiffs in the case had sought a building permit to construct a residence on a vacant lot. When their application was denied by the building inspector, they appealed to the local zoning board, which affirmed the decision. The plaintiffs then filed the present appeal to the Land Court.construction

On appeal, the plaintiffs argued that the lot was buildable, since it was created by the division of an existing lot in 1964 and retained its grandfather status under the zoning ordinance in effect at the time of the division. The zoning board asserted that the lot was unbuildable because the 1964 division was not approved pursuant to the Subdivision Control Law, and because the lot merged with another lot when it was placed in common ownership, losing any grandfather protection it had.

The Massachusetts Subdivision Control Law was enacted in 1953 and prohibits the division of land without approval of a plan by a local planning board. The term subdivision under the statute includes a tract of land divided into two or more lots, but it is subject to multiple exceptions, including lots with frontage on a public way. The plaintiff’s lot, which was created by division in 1964, was located on a public way and satisfied the statutory requirements, such that it was not considered a subdivision subject to additional subdivision laws. A division that is not a subdivision within the statute is known as an Approval Not Required or ANR plan, and the division does not require planning board approval.

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In some situations, nearby property owners have the right to object to decisions made by local zoning boards.  These cases typically involve interpreting deeds and applying the real property laws of Massachusetts and local bylaws.  In an October 5, 2017 case, the Massachusetts Land Court considered a challenge brought by plaintiffs against a property management company after the local zoning board granted a variance to the defendants, allowing an otherwise prohibited two-family dwelling use on an undersized lot.  One of the issues for the court was whether the defendants took title to the lot subject to all easements, restrictions, and rights contained in the recorded deeds, or whether the restrictions had expired pursuant to law.house

The lot at issue in the case was originally part of a larger parcel that was conveyed in 1925 subject to several restrictions, one of which prohibited more than one single-family house and garage.  The parcel was thereafter subdivided into lots, which were sold individually and made subject to the original restrictions by deed.  The lot at issue was subsequently conveyed to various owners until the defendants acquired it in 2011.  The deed provided that the lot was subject to the same restrictions and easements as the prior deeds.  It did not provide any time limits on the restrictions.  The defendants sought a variance to authorize two-family dwelling use and deviate from minimum lot size requirements, which was granted by the local zoning board.

The plaintiffs in the case owned one of the other lots in the original parcel.  They argued that the deed restriction limiting the lot to single-family dwelling use remained valid and enforceable.  The defendants contended that the single-family use restriction originally imposed in 1925 had expired pursuant to Massachusetts G.L. 184 § 28.  The statute provides that any restriction imposed before 1962 is not enforceable after 50 years, unless a Notice of Restriction has been recorded to extend enforceability beyond the 50-year period.

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Massachusetts state and local zoning laws generally have the most direct impact on how land can be used, but in some cases, constitutional issues may arise.  An October 18, 2017 case illustrates a Massachusetts land use matter challenged by town residents on the basis of the Massachusetts Constitution.  The local planning board had granted site plan approval to a company for the construction of a solar panel facility on a portion of the town’s property, which the company leased from the town.  The plaintiffs alleged that the property at issue was protected by the state constitution, and, therefore, a two-thirds vote in the Massachusetts Legislature was required before it could lease out the land.  The main issue in the case, therefore, was whether the town violated the Massachusetts Constitution by leasing town-owned land for use as a solar-powered electricity generation facility.solar panels

Article 97 of the Massachusetts Constitution protects the right of the people to the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources.  Lands and easements taken or acquired for these purposes cannot be used for other purposes, or otherwise disposed of except by laws enacted by a two-thirds vote of the Massachusetts Legislature.  The question for the court in such cases is whether the land was taken for a purpose consistent with Article 97, or later designated as such.  If land was taken for more than one use, or just incidentally serves the purposes enumerated in Article 97, the requirements of Article 97 do not apply.

In the case, the town had originally taken title to the property at issue pursuant to a deed, which provided that the land was conveyed to the town for the purposes of protection of water resources and other compatible purposes, including conservation and recreation.  The plaintiffs contended this language triggered the protections of Article 97.  The town argued that the language did not designate the property solely for the purposes protected by Article 97 because it may be used for “other compatible purposes.”

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Boundary disputes and property ownership are often resolved in court proceedings, particularly when the party claiming possession of the land is not the title owner.  In an August 22, 2017 case, the Court of Appeals reviewed a Massachusetts title action between a landowner and the town.  The landowners brought the action against the town, seeking a declaration that they were the rightful title owners of a patch of land and way between two public roads.  The town filed a counterclaim, contending that it had a prescriptive easement.  After the Land Court ruled for the town, the landowners appealed to the higher court.fence

The area at issue consisted of a triangular parcel of land and an abutting way.  The way was paved but unnamed, and it was wide enough for two-way traffic to flow.  It provided a cut-through between two larger roads that merged at an intersection located at the tip of the triangular parcel of land.  The way was maintained by the town and had been used by the public for more than 20 years.  Although the public did not use the triangular parcel of land, the town had installed a drainage system in the triangle to channel water from the public roads, mowed the area, and removed dead trees.  The plaintiffs had not paid taxes on that area, nor had they been assessed by the town.

For a municipality in Massachusetts to acquire a prescriptive easement over land for a specific public purpose, it must demonstrate open, continuous, and notorious use for more than 20 years, as well as sufficient proof that it exercised dominion and control over the land through authorized acts of its employees to conduct or maintain a public use for the general benefit of its residents.

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Property descriptions contained in deeds that were written a century ago can be difficult to interpret, and this may eventually lead to title disputes.  In a September 27, 2017 Massachusetts real estate case, a plaintiff filed a petition with the Land Court to confirm title to an unregistered portion of property that consisted of upland and salt meadow.  The primary issue for the Land Court in the case was whether an 1886 deed on which the plaintiff relied conveyed the entirety of the area at issue, or just the salt meadow portion, leaving the upland to be conveyed by an 1894 deed to the previous owners of the defendants’ property.blue heron

The purpose of land registration proceedings is to provide a method for making titles to land certain and indefeasible.  The plaintiff in a registration petition has the burden to establish claim of title to a particular parcel of land and the correct location of that land on the ground.  The plaintiff in the case sought to establish his interest in the entire area through his record title in an 1886 deed.  The 1886 deed described the land conveyed in general terms as “a lot of salt meadow,” and it did not specify whether that area included the upland.

In Massachusetts, the rules of deed construction provide a hierarchy for interpreting descriptions in a deed:  descriptions that refer to monuments are controlling, then descriptions that use courses and distances, and lastly, descriptions by area.  The court may consider any competent evidence in determining the true boundary line between adjoining owners, including relevant extrinsic evidence bearing upon the grantor’s intent, such as the circumstances of the transaction and the subsequent actions of the parties.

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Land used by many members of the community, such as parks and other recreational public property, is subject to zoning regulations and other laws that may apply. In an October 2, 2017 Massachusetts real estate case, the Supreme Judicial Court considered an action brought against a city by its residents, who sought a restraining order to prevent construction of a new school on land that was used as a playground.land use

The land at issue had served as a public park for more than 60 years since it was created and formally approved by the city in 1957. In 1979, the city received a grant from the federal government to rehabilitate the playground in the park. The law authorizing the grant imposed a requirement that any property developed with grant assistance could not be converted to any use other than public outdoor recreation without the approval of the U.S. Secretary of the Interior. In 2011, the city council voted to transfer the playground from the parks and recreation department to its school department to construct a new elementary school on the land. A group of city residents commenced an action to halt the construction project, arguing that the land and the playground could not be used for any other purpose.

Article 97 of the Amendments to the Massachusetts Constitution provides that land and easements taken by eminent domain for conservation purposes cannot be used for any other purpose or disposed of without approval from the Legislature. Massachusetts courts have held that land dedicated as a public park is protected by Article 97, even if it was not taken by eminent domain or subject to a recorded restriction limiting its use. A city dedicates land as a public park under Article 97 when there is a clear and unequivocal intent to dedicate the land permanently as a public park, and when the public accepts such use by actually using the land as a public park. Since the municipal land at issue was dedicated as a public park, the court concluded that the land was protected by Article 97.

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Sharing an alleyway with other property owners can be frustrating, especially when their right to use the alley is in question.  In a September 19, 2017 Massachusetts real estate case, the appeals court considered the nature and extent of the defendants’ right to use a 10-foot-wide passageway running between their property and the property of the plaintiffs.  The defendants in the case operated a small grocery and wine store in Boston, while the plaintiffs owned the property across the passageway.  The plaintiffs brought an action seeking injunctive relief from the defendants’ use of the passageway.alley

Prior to 1947, the previous owners of the property owned to the center of the passageway abutting their respective properties, and they enjoyed a right of passage, in common with others, over the rest of the passageway.  In 1947, the previous owners of the properties had entered into an agreement that restricted current and future owners of the defendants’ property to travel on foot and with hand carts through the passageway and expressly excluded the right to place garbage in the passageway or use the passageway for any purposes other than those provided.  Owners of the plaintiffs’ property were allowed to use the passageway in any manner for which a street is commonly used.

The primary issue for the court was whether the provisions of the 1947 agreement constituted a restriction or an easement.  The legal construct of a restriction and an easement is similar, but the distinction is outcome-determinative.  A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways.  An easement, on the other hand, creates a non-possessory right to enter and use land in the possession of another party and obligates the possessor not to interfere with the uses authorized by the easement.  While restrictions become unenforceable with the passage of time, easements do not.

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