In Touher v. Town of Essex, the Massachusetts Court of Appeals was presented with a somewhat unusual situation involving long-term land leases between the town of Essex and residents who built homes on the leased property. Four sets of plaintiffs filed a complaint with the lower court, seeking a declaration that they owned the buildings erected on property leased to them by Essex and on which they reside. A Superior Court judge found that, although two of the plaintiffs owned their cottages as personal property, the more substantial homes constructed by the other two plaintiffs were fixtures that belonged to the town. On appeal, the court affirmed the ruling.
For over a century, the town of Essex has been leasing plots of waterfront property to seasonal residents. Many residents built seasonal cottages on their leased property and paid real estate taxes on the cottages. Fearing the town would eventually sell the land and the structures built on them, the plaintiffs filed a complaint seeking a declaration that they owned their homes as personal property.
In determining whether the residents’ houses were fixtures or personal property, the court cited to the general rule that if it has become so affixed that its identity is lost, or so annexed that it cannot be removed without material injury to the real estate or to itself, it is a fixture. In Touher, the court held that the residents’ homes, one of which expanded the original cottage to double its size, and the other of which was a substantial three-story structure, could not be removed without significant damage to the homes and were permanently affixed to the land.
Generally, the erection of a building on the land of another makes it a part of the realty under Massachusetts law. There is, however, an exception when there is an agreement, either express or implied, that the building is personal property and that the owner of the building may remove it. In Touher, there was no express agreement that the residents would own any structures affixed to the land. The court also found that nothing in the record indicated that there was an implied agreement between the residents and the town regarding ownership, although the fact that the town required formal approval of all building plans tended to demonstrate that the town believed it would own any of the structures affixed to the land.
Lastly, the court addressed the residents’ argument of unjust enrichment to the town. The court held that in light of the well-established law regarding building structures on another’s land, the town’s retention of the structures does not go against fundamental principles of justice or equity.
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More Blog Posts:
Massachusetts Zoning Laws and Construction Permits, Massachusetts Real Estate Lawyer Blog, published May 14, 2015
Massachusetts Appeals Court Affirms Finding of Abandoned Easement, Massachusetts Real Estate Lawyer Blog, published June 10, 2015