Articles Posted in Public Access

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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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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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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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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 Cycle of Homelessness and Addiction

Nothing is sadder than the sight of homeless men and women sleeping in private doorways or public parks even in the nicest neighborhoods. One solution that appears to be gaining ground is the construction of sober living facilities, designed to break the cycle of homelessness and addiction. A state agency and its non-profit subsidiary are funding affordable housing options for men, women, and families, which will ultimately improve Massachusetts neighborhoods for all residents.homeless-in-boston-920133-m[1]

MassHousing

MassHousing (The Massachusetts Housing Finance Agency) is an independent, quasi-public agency created to finance affordable housing in Massachusetts. MassHousing sells bonds to raise capital and lends the proceeds to low- and moderate-income homebuyers and homeowners, as well as developers proposing to build or preserve affordable or mixed-income rental housing. MassHousing is self-supporting, not dependent on taxpayer dollars to sustain its operations. It does administer some publicly funded programs on behalf of the Commonwealth. Since its inception in 1966, MassHousing has provided more than $17 billion for affordable housing. As announced in 2014, $292,200 in funding by MassHousing will help create or preserve 66 units of sober housing in Framingham, Holyoke, Leeds, Tewksbury, and Worcester for men, women, and veterans.

Center for Community Recovery Innovations Creates Affordable Sober Housing

The Center for Community Recovery Innovations, Inc. (CCRI) is itself a nonprofit, functioning as a subsidiary corporation of MassHousing. CCRI distributes grants that in turn support non-profits that create or preserve affordable sober housing in Massachusetts. CCRI has awarded more than $7.8 million in grants to build or subsidize 1,700 units of specialized housing in more than 40 communities. CCRI funding is a crucial bridge over gaps in financing for this type of housing, targeted to get projects completed for the residents who need them.

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If you own beachfront property in Massachusetts, or are considering purchasing such property, it might save some surprises if you consult a Massachusetts real estate attorney regarding your rights and the rights of others to access your private beach.fishermen-at-dawn-884216-m[1]

Over the years, Massachusetts courts have only slightly increased the scope of public activities that are guaranteed to be available even on privately held tideland property. These public rights include fishing, bird hunting, and boating.

Fortunately, Massachusetts law gives coastal property owners more extensive private rights to their beachfront area than other states.

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