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Court Discusses Law of Merger in Massachusetts Real Estate Dispute

The Massachusetts Land Court decided a real estate dispute regarding the property merger of lots for building purposes in Kneer v. Luciano (Mass. Land Ct. Aug. 21, 2015). In Kneer, the plaintiff owned two lots of vacant land, which together failed to satisfy the current zoning requirement for the minimum lot size on which to build. Contending that the lots were grandfathered and thus exempt from the zoning law, the plaintiff applied for a building permit to construct a single family house on the lots. The Building Inspector rejected the application, finding that for purposes of zoning, the lots lost any grandfather protection that they may have held. The plaintiff appealed that decision, and the parties filed cross-motions for summary judgment with the Land Court.fence-1388285-639x424

In Massachusetts, adjacent lots will generally be treated as one single lot, or “merged,” for zoning purposes as soon as they come into common ownership in order to minimize nonconformities. Common ownership occurs when the lots are titled in the same name, as well as when they are within the common control of a landowner. Once merged, the land cannot be un-merged or artificially divided in order to restore older boundaries of record and obtain a grandfather nonconforming exemption. Instead, to preserve such an exemption, the lots must retain a separate identity. There is an exception to this rule in that a municipality may adopt a more liberal grandfather provision in its zoning ordinance or bylaw. However, it must do so with clear language.

In Kneer, the parties both agreed that the original two lots, 46 and 47, have merged. The basic question for the court was whether those lots had merged with any adjacent lots, thus making them unbuildable by themselves. More specifically, the court needed to determine whether the lots also merged with adjacent lots 48 and 49 or whether they were grandfathered from the merger, and whether the lots later merged with adjacent lots 44 and 45 by means of the common control of those parties.

The Land Court analyzed the relevant 1953 bylaw, § 8, finding that the regulation clearly and unambiguously gave grandfather protection to lots 46, 47, 48, and 49 and preserved their separate buildability. However, when the language changed in 2013, the lots were no longer able to become “un-merged.” Therefore, the court held that lots 46 and 47 had merged with adjacent lots 48 and 49.

With regard to the second issue, the court noted that “common control” did not mean only that the lots were titled in the same name but also that the owners had common authority over all of the lots. In Kneer, a trust was the owner of lots 46 and 47, while the beneficiary of the trust was the record owner of lots 44 and 45. The court held that additional discovery was required to determine the issue, and it denied the defendant’s motion for summary judgment.

If you are involved in a property dispute or other real estate issue, a skilled lawyer can help you inform you of your legal options. The Massachusetts attorneys at Pulgini & Norton provide experienced and competent legal representation to individuals in a variety of real estate matters, including home sales, closings, mortgages, refinancing, and others. To discuss your situation with one of our lawyers, call (781) 843-2200, or contact us through our website.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Appeals Court Reverses Summary Judgment, Allows Homeowner to Continue Suit Against Mortgage Company, Massachusetts Real Estate Lawyer Blog, published November 17, 2015

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