Articles Posted in Title and Ownership

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An easement is a property right that may, in some situations, be abandoned or extinguished by law.  In a May 2, 2019 Massachusetts real estate case, the Land Court considered whether the defendant held an easement over an area abutting its property.  The area in dispute was a “paper way”, as it was conveyed and described in the deed as a right of way but had never been constructed.

The defendant in the case owned a large apartment complex.  The paper street was located between the plaintiff’s properties and, in the deed, continued through to the defendant’s property.  In 1993, the prior owner of the apartment complex installed a six-foot fence, cutting off its own access to the paper street.  Since then, the plaintiffs claimed to have used the paved portion of the paper street as a driveway and parking area, and the unpaved portion as a lawn, grilling area, and wooded area.

The plaintiffs filed an action against the defendant in Land Court, seeking a declaratory judgment that it owned the paper street in fee and that the defendant had no property rights over it.  The Land Court addressed the issue of the defendant’s easement rights when the parties moved for summary judgment.  The plaintiffs argued that any rights the defendant had in the paper street were extinguished by prescription or abandoned.

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An easement allows a person the legal right to use another person’s land for a specific and limited purpose.  If someone interferes with that right, the easement holder may request that the court to issue an injunction prohibiting such interference.  In an April 5, 2019 Massachusetts real estate case, the plaintiff filed an action against her neighbors after they fenced in a private way, thus preventing her from using it.

The private way at issue was located on the borders of the plaintiff’s land and the defendants’ land.  The first deed to the plaintiff’s property, recorded in 1901, granted the right to the owners to pass over the private way, located on the defendants’ property.  After purchasing their property in 2017, the defendants informed the plaintiff that they intended to put up a fence to obstruct the plaintiff’s use of the way.  Over the plaintiff’s objection they installed the fence.

The plaintiff filed a Complaint in the Massachusetts Land Court, asserting claims of ownership by adverse possession and interference with easement rights.  The plaintiff then moved the court for a preliminary injunction requiring the defendants to remove the fence and stop interfering with her use of the way.

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One of the most important factors in a Massachusetts prescriptive easement claim is whether the claimant’s use of the property was permissive or adverse.  The Land Court recently addressed this issue when deciding an April 5, 2019 case.  The plaintiff in the case sought to improve a section of a path located on the defendants’ property, claiming that he had the right to make improvements because he held a prescriptive easement over the path.

The defendants’ property and most of the surrounding land had traditionally been used for cranberry farming.  The path in dispute was part of a long-existing system of cart paths that wound through the fields to various ponds.  At present, part of the path was used as the defendants’ driveway and connected to the main road.

The plaintiff had a direct route to the main road as well, which was located entirely on his property.  However, rather than using that route, the plaintiff sought to improve and use the section of the path located on the defendants’ property and used as their driveway to access the main road.  The plaintiff asserted his rights to improve the path through a prescriptive easement claim.

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In a Massachusetts real estate action to clear title, a person seeks a court order that they are the owner of the property and that there are no other valid legal claims that may be made against the property.  An April 1, 2019 title action decided by the Land Court illustrates how these cases may arise.  The plaintiff in the case filed an action to clear title after ownership of property became an issue during the probate of his wife’s estate.

The property had been conveyed to the plaintiff by his parents and was his primary residence.  In 1996, the plaintiff and his late wife had executed multiple legal documents purporting to create a family trust and named themselves as trustees. Neither the trust declaration nor the certification of trust was ever recorded. Nevertheless, the plaintiff conveyed the property to the family trust and his late wife, as trustee of the trust, and recorded the deed.

In June of 2013, the plaintiff attempted to refinance the property, but was informed by the lender that the 1996 transfer of the property to the trust had failed, because no trust certificate was ever recorded.  The lender asserted that the 1996 deed had instead served to convey title to the plaintiff’s wife, individually.  The plaintiff subsequently filed an action against the beneficiaries of his late wife’s estate, seeking to establish his ownership of the property.

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In Massachusetts, certain uses and activities must be permitted under local zoning laws or approved by the proper authority before they are allowed to take place on a specific parcel of property.  In a March 21, 2019 Massachusetts zoning case, the plaintiffs sought to reverse a local decision that prevented them from transporting dirt and fill onto their property.

The plaintiffs in the case operated a farm on several parcels of property that they owned.  From 1990 through 2016, the plaintiffs had gravel removed from one of the parcels, which eventually created a 45-acre, 40-foot deep pit on the property.  The plaintiffs intended to fill the pit with dirt and restore the area in order to grow crops.  They contracted with a hauling company to accept fill from construction projects in and around Boston.  The hauling company was paid by construction sites to take away dirt fill, and the plaintiffs were paid to accept the fill while also having their pit filled in and restored to farming use.

The local building commissioner objected to the arrangement and ordered the plaintiffs to cease and desist all soil importation operations immediately.  The zoning board upheld the commissioner’s order, finding that soil importation was not a permitted use under the local bylaws.  The plaintiffs appealed the decision, and the matter was presented in the Massachusetts Land Court.

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In some situations, a person may establish title by adverse possession in a legal action filed with the Massachusetts Land Court.  The plaintiffs in a March 4, 2019 Massachusetts adverse possession case claimed title to an additional eight foot wide strip of land along the eastern boundary of their property.  They brought the claim against their neighbors, who were the record owners of the area in dispute.

The portion of land claimed by the plaintiffs was not a unified area.  Essentially, it could be divided into three parts.  One section had been enclosed by the plaintiffs’ back yard fence until 2012 and encroached approximately 5 feet over the record boundary line.  The second section was not fenced or enclosed.  The plaintiffs claimed possession of this section because they regularly raked and mowed the area and the defendants had no physical presence in the area.  The third part consisted of 3 feet beyond the fence that had been erected and removed by the plaintiffs.

To acquire title by adverse possession in Massachusetts, the plaintiffs must show nonpermissive use of the property which is actual, open, notorious, exclusive and adverse for a continuous period of twenty years.  The acts that establish adverse possession must be changes to the land that demonstrate the control and dominion ordinarily associated with ownership, and so open and notorious that they may be presumed to have been known by the record owner.

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Sharing an access road or right of way with other property owners occasionally causes conflict, as in a recent Massachusetts real estate action.  The parties in the case owned adjacent lots in a residential subdivision that bordered a lake.  In a January 17, 2019 decision, the Land Court was presented with the question of whether and to what extent the parties had property rights in, or ownership of, a right of way easement leading to the lake.

The defendant in the case owned a lot in the same subdivision as the plaintiffs.  He used the right of way regularly to access the lake, and had made improvements to it, such as re-grading a sloped section and installing a portable, metal dock.  The co-plaintiffs filed the action seeking to clear title and for a declaratory judgment with respect to their ownership rights in the way.  They presented multiple, alternative theories to the court to establish their claims.

Ultimately, the plaintiffs prevailed on their claim that they owned the right of way up to the centerline, by operation of the Derelict Fee Statute.  Pursuant to the Massachusetts Derelict Fee Statute, a deed that conveys a piece of land abutting a way includes ownership of the way up to the centerline, unless otherwise expressed in the deed.  If the property on the other side of the way is conveyed as well, the full width of the way is conveyed.

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A dispute over parking may become a legal issue if it interferes with the property rights of one or more individuals.  For many condo residents, legal claims pertaining to their building may only be asserted by the owner, which is typically a condominium trust.  In such cases, the interests of the condominium trust must be represented by a Massachusetts real estate attorney during the legal proceedings.

In a January 7, 2018 case, the Land Court determined whether the plaintiff had the right to park on abutting property owned by the defendant. The plaintiff in the case was an individual owner of a residential condo unit.  She was also a trustee of the condominium trust that owned the condo building.  She filed her action in Land Court, without the representation of an attorney, in both her individual capacity and her capacity as a trustee.

In Massachusetts, while a person may represent oneself in most legal proceedings, only a member of the bar may represent another person or entity before a court.  Therefore, as an initial matter, the Land Court ruled that the plaintiff could not bring claims on behalf of the trust pro se, and that those claims must be dismissed. The court then went on to address her individual claims against the defendant.

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It is not uncommon for issues regarding property ownership to arise after the death of one of the co-owners.  In a December 19, 2018 Massachusetts real estate case, the Land Court decided a partition action among three brothers who co-owned a residential property.  During the course of the legal proceedings, however, one of the co-owners died, calling into question how the property should be divided.

When the partition action was initially filed in Land Court, the brothers held the property as joint owners with right of survivorship.  The partition would have terminated the joint tenancy with right of survivorship.  Therefore, had all three lived, a partition by sale and subsequent division of the proceeds would have provided one third of the net sale amount to each brother.

After the death of the one of the brothers during the partition proceedings, however, the Land Court was faced with another issue.  The question for the court was whether the net proceeds should be split in half between the two remaining survivors, or whether the partition proceedings had ended the joint tenancy and converted it to a tenancy in common, in which case the two surviving brothers would receive one third of the sale proceeds and the estate of the deceased brother would receive one third.

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Litigating ownership disputes in Land Court may be a way to establish clear title to property.  In a November 14, 2018 Massachusetts real estate case, the plaintiff filed an action asserting his rights in a private way against the defendant, who was the owner as a matter of record.

The plaintiff in the case owned up to the centerline of the road at issue, where it was adjacent to his home.  The defendant’s mother had owned the other portion of the road, where it was adjacent to her home.  The defendant’s mother had transferred her interest in the road to the defendant pursuant to a deed.  However, the adjacent lot was conveyed to a different owner.

The plaintiff filed an action in Land Court, asserting several claims to establish ownership.  One of the claims sought a declaratory judgment that the defendant’s interest in the way was invalid, because it could not be separated from the adjacent property.  The plaintiff also contended that the defendant’s mother failed to reserve any rights in the way when she sold the adjacent lot, and therefore had no right to convey any interest in the road.

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