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When the ownership or right to use a road is in dispute, the issue may need to be settled by a court of law. An August 30, 2017 Massachusetts real estate case illustrates a controversy between a homeowner and the town concerning the status of a roadway. The plaintiff sought a judgment that a portion of the roadway was a private way for the use of himself and a neighboring homeowner, but not the public at large. The town denied that the section of the roadway was private, and asserted that it was a public way pursuant to a plan designating it as such, which was filed in connection with a registration petition for the plaintiff’s property by the previous owner.road-to-dreams-1557734-640x480-300x225

The issue before the Land Court, therefore, was whether the section of roadway was a private or public way. As the party asserting the public way, the burden was on the town to prove its claim that the section of roadway at issue was public. In Massachusetts, a private way is not public unless it has become so by one of the following ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; or (3) prior to 1846, a dedication by the owner to the public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.

In the case, the town conceded that the public way was not laid out according to the relevant law. The town did not produce any evidence that the roadway was a public way by prescription, nor that it was created by a dedication prior to 1846. The town solely relied on the depiction of the roadway as “public” in the registration plan as conclusive evidence on the issue, arguing that the plaintiff was precluded from asserting that it was a private way.

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If you believe that your property rights are being violated, you may be able to bring an action to stop or enjoin the actions of another individual or entity in court.  In an August 24, 2017 Massachusetts real estate case, the plaintiff filed an action claiming an easement over registered property owned by the town of Plymouth, and he sought to enjoin the town from interfering with his easement.  Although the plaintiff had a public right of access over the town’s property, he sought to enforce greater easement rights, which he argued the town violated by relocating the easement without his consent.riverside-1447563-640x480-300x225

The Land Court ruled that the plaintiff had an implied easement to cross the town’s land to the sea, but it was limited in scope.  Specifically, the court held that the easement entitled the plaintiff to enter and cross the town’s land only on the path designated by the town.  The plaintiff appealed the judgment to the Appeals Court of Massachusetts.

The plaintiff purchased his property in 2010.  His lot was originally part of a larger parcel divided into three lots in 1911.  None of the deeds to the three lots contained or reserved an express easement for the benefit of the plaintiff’s lot.  A paved way over one of the lots led to a public park on another lot and to the harbor.  The plaintiff purchased his lot for access to the harbor.  Due to a physical disability, the plaintiff’s only means to access the harbor is by using an amphibious vehicle from his lot to the boat landing on the other lot.  The plaintiff contended that the reconstruction of the public park and the construction of a boat ramp at the northern end of the park essentially relocated his easement, making it less convenient and more difficult to use.

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Failing to pay local property taxes can result in serious consequences, including property liens and even foreclosure.  An August 30, 2017 case before the Land Court involved a Massachusetts foreclosure action brought by the town of Charlemont against the defendants after they stopped paying real estate taxes in 1992.  The defendants in the case argued that their property was actually located in the neighboring town of Hawley, although Hawley chose not to assess taxes against their property, believing it to be in Charlemont. survey map

The defendants’ property was only conclusively located in the town of Charlemont after a 2010 act by the Legislature fixed the town’s boundaries.  Prior to that time, the parties disagreed as to whether the defendant’s property was located within the limits of Charlemont, or within the limits of the bordering town of Hawley.  This question of where the property was located prior to the legislation was relevant to determine whether Charlemont could foreclose on its tax title for the previous years that it had assessed taxes against the defendants’ property.  If the defendants were correct that their property was located in Hawley prior to the passage of the act, the tax assessed by Charlemont would be rendered void, and Charlemont, in turn, would have no legal basis to proceed in its foreclosure action against the defendants’ property.

The Land Court began by examining maps of the area that made up Charlemont and Hawley in order to determine the boundary line.  A 1794 map depicted the southern boundary of Charlemont bordering the northern boundary of Hawley.  In 1838, Charlemont annexed an unincorporated village that also bordered the northern boundary of Hawley.  Subsequent maps conflicted in their descriptions of the boundary line between Charlemont and Hawley, prompting the Massachusetts Legislature to pass an act that definitively established the boundary line in question as of March 16, 2011.

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In most cases, a mortgage on property must be paid back to the lender according to an agreed upon schedule.  In an August 2, 2017 Massachusetts real estate case before the Land Court, the parties involved did not have a traditional bank mortgage arrangement.  The plaintiff had filed a petition to amend the title to his property by expunging the recorded mortgage.  The plaintiff argued that a mortgage he granted to his brother, the defendant, had become obsolete and unenforceable by the passage of time.  The defendant argued that the limitations period had not yet passed, and therefore, he retained the right to foreclose on the mortgage.handshake

In 1994, the plaintiff signed a promissory note and granted a mortgage to the defendant in the amount of $275,000.  The mortgage was recorded and noted on the certificate of title.  Although the original promissory note was lost, the mortgage incorporated the terms of the note by reference.  In 1996, the parties modified the loan by extending the remaining principle sum of $150,000, but they did not record the document.

A mortgage is an interest in real property that secures a lender’s right to repayment, such that should the debtor fail to timely repay the debt or otherwise default on his obligations, the creditor can foreclose on the mortgage and recover.  A promissory note and mortgage co-exist, providing the lender with a double remedy, one upon his deed, to recover the land, another upon the note, to recover a judgment and execution for the debt.  The mortgage remains in full force until the debt shall be paid.

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Massachusetts zoning laws regulate the manner and extent to which property can be used.  An August 18, 2017 Massachusetts real estate case brought before the Land Court illustrates a land use dispute involving neighboring homeowners.  One of the homeowners had requested that the town’s building commissioner take a zoning enforcement action against his neighbor, who operated a contracting business.  When the building commissioner denied his request, the homeowner appealed to the local zoning board of appeals, which found that the neighbor’s activities did violate use regulations.  The neighbor appealed the board’s decision to the Land Court.construction

The parties in the case lived in a Single Residence zoning district, where bylaws prohibited most commercial activities.  Despite the bylaws, the neighbor and his crew regularly parked numerous commercial vehicles at his property, gathered for meetings outside, and effectively used his yard as a contractors’ storage yard.  The homeowner who lived next door found these activities to be particularly disruptive, as did the rest of the neighborhood.

The Land Court found that many of the activities on the neighbor’s property were commercial in nature and prohibited under the bylaw.  The neighbor, however, argued that his property had, as an accessory use, a home occupation.  The local bylaw defined accessory use as that which is clearly subordinate and incidental to the principal building or use and, significantly, does not alter the character of the premises.  A customary home occupation, using one or more rooms for an office or studio, is a permissible accessory use under the bylaw, as long as no more than two people are regularly employed, the residential appearance and character of the premises are preserved, advertising on the premises is limited, and no sales are regularly conducted unless incidental to the accessory use.

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Property can be restricted in any number of ways through various legal means, such as a covenant or easement, often surviving a transfer of ownership.  In an August 11, 2017 Massachusetts real estate case, a plaintiff sought a declaratory judgment from the Land Court stating that she had an affirmative view easement over the property of the defendant.  The defendant sought a contrary declaration, arguing that the recorded documents did not support the plaintiff’s position.trees

The parties in the case lived in the same subdivision on neighboring lots.  The plaintiff claimed she had an easement pursuant to the subdivision’s Protective Covenant Agreement, which allowed her to compel other lot owners to trim their trees in order to protect her view of the sound.  She filed an action seeking to compel the defendant to top trees on the defendant’s property, asserting that the trees were blocking her view of the sound.

The Protective Covenant Agreement at issue provided that trees may be topped to preserve the view at the expense of the requesting lot owner and with the consent of the developer.  The Agreement also stated that subsequent plantings shall not be permitted to grow in such a manner as materially to obstruct the view of others.  Despite the fact that the Protective Covenant itself expired in 2002, the plaintiff argued that it created an easement that survived the expiration and remained valid.

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Massachusetts real estate disputes often arise when property owners feel that changes proposed by other landowners would adversely affect their property rights. In a July 26, 2017 case, the Appeals Court of Massachusetts considered whether a local planning board properly approved a modification of a 1947 subdivision plan that abandoned a portion of one road and replaced it with an easement.

street-1446906-639x847-226x300The defendants in the case had sought the modification from the planning board in order to advance the commercial development of properties owned by the defendants along the subdivision road at issue. Upon the board’s approval to change the subdivision road to an easement, the defendants could then combine their lots and eliminate some of the zoning restrictions they faced.

The plaintiffs in the case were residential owners of lots that abutted the subdivision road from the north. They appealed the planning board’s decision to allow the defendants’ proposed modification, objecting to the changes. The Land Court ultimately affirmed the board’s approval, concluding that the plaintiffs had failed to demonstrate any harm affecting their lots from the discontinuation of a portion of the road and change to an easement. The plaintiffs subsequently brought their appeal to the Appeals Court of Massachusetts.

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In some cases, legal action is required to protect a landowner’s rights to a part of their property used by others.  In a July 11, 2017 Massachusetts real estate case, the issue for the land court was whether the defendants and their guests had an appurtenant prescriptive easement for the unrestricted pedestrian use of a beach path located on the plaintiff’s property.beach

For decades, with the permission of the plaintiff and its predecessors in title, local residents have occasionally used the path to access the beach.  There is no public access to the path, and the local residents are alert to outsiders’ cars and chase them away.  Because of the parcel’s remote location, the hilly terrain, and the overgrowth surrounding it, it is impossible to notice anyone using the path unless the observer is on the path as well.

Opened seasonally since 1993, the defendants have operated a seven-guestroom inn and restaurant near the plaintiff’s parcel of land.  Despite having two other legitimate means of beach access, and without giving notice or seeking permission from the plaintiff, the defendants encouraged their guests to use the path on the plaintiff’s parcel to get to the beach.  On average, the guests used the path twice a day, and they were on the plaintiff’s parcel for only a minute or two as they walked to the beach.  None of the guests lingered on the property itself or left any sign of having been there.  Even if the guests were seen, moreover, they could not be distinguished from the local residents to whom the plaintiff had given permission to use the path.

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The Massachusetts Land Court recently considered a July 11, 2017 real estate case, which involved a 19th-century railroad easement in the plaintiffs’ property.  The easement at issue ran along the border of the plaintiffs’ property, and it was last used by the railroad in 1972.  The railroad’s interests in the easement had since passed to the Massachusetts Department of Conservation and Recreation (DCR). When the DCR announced that it wanted to build a walking and biking path on the railroad easement, the plaintiffs filed a quiet title action in land court. The plaintiffs in the case sought a court order stating that their property was unencumbered by any easement or other right of use or entry derived from a former railroad easement.railroad tracks

Historically, the 19th-century statutes giving railroads the power to take private lands for railroad lines didn’t give them a full ownership interest in what they took. Instead, a railroad received only a permanent and exclusive easement in the taken land for as long as the easement served the railroad’s chartered purposes. Consequently, once the railroad no longer has a use for the property, the land reverts back to the current owners, free of the easement. The plaintiffs sought a declaration that the entire interest in the easement reverted back to them.

DCR initially tried to invoke sovereign immunity, a doctrine that prevents a private party from suing the state and its agencies (i.e., DCR) in most circumstances. However, in Massachusetts, the courts have ruled that the try title statute impliedly waives immunity with respect to actions for quiet title. DCR then argued that the plaintiffs had to prove the federal government authorized abandonment of the easement.

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In a July 7, 2017 decision, the Massachusetts Land Court addressed a real estate dispute between condominium owners over their respective rights to access certain areas of the property. The parties were unit owners in a two-unit, residential condo. The plaintiffs in the case sought to prevent the defendants from installing a fence they claimed would prevent them from accessing and using land in which they have exclusive rights. The plaintiffs also requested recognition of an implied easement by necessity over a portion of the condominium common area, which had been designated for the exclusive use of the defendants’ unit. townhouses

The land court first looked at the site plan of the master deed to determine the rights of the parties. The plan provided that the exclusive rights area for the plaintiffs’ unit included a portion of the front yard, including the parking area for that unit, and continued along the side of the condo building, narrowing where it runs parallel to the defendants’ exclusive rights area directly behind the building, and opening to the rearmost portion of the plaintiffs’ exclusive rights area at the far southern end of the property. The plan depicted the defendants’ exclusive rights area as covering the remainder of the property, including the yard area directly behind the building.

When the defendants informed the plaintiffs of their intention to remove the existing stairs and install a fence around the backyard portion of their exclusive rights area, the plaintiffs objected, asserting that the changes would prevent them from accessing their own rear yard. After reviewing the master deed, the land court concluded that the defendants were within their rights under the deed to install the fence and remove the stairs located on their exclusive area. The land court also ruled that the defendants’ actions did not violate the plaintiffs’ rights under the deed because they did not infringe on the plaintiffs’ exclusive area nor the common areas of the property.

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