Articles Posted in Title and Ownership

If someone has interfered with your easement or property rights, you may have legal recourse.  In a September 19, 2019 Massachusetts real estate case, the plaintiffs filed an action against their neighbors in Land Court claiming that their property had the benefit of an easement over their neighbors’ property.  Specifically, the plaintiffs sought a declaratory judgment from the court that they had the right to use an existing driveway on the defendants’ property to access their own property, and a restraining order enjoining the defendants from blocking the plaintiff’s access to their property.

The plaintiffs in the case asserted that their right to use the defendant’s driveway was based on a recorded easement, a prescriptive easement, and/or an easement by necessity.  With regard to the plaintiffs’ claim to a recorded easement, the court held that the deed presented in support of their argument was ineffective to create an express easement.  The court explained that, although both parties’ properties were held under common ownership originally, at the time the grantor purported to convey the right of way at issue, he did not own the defendant’s property.  As one cannot convey a property right that one does not own, the court ruled that no express easement was created by deed.

The court next addressed the plaintiffs’ claimed easement by necessity.  In Massachusetts, an easement by necessity requires the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.  The court noted that the deed severing the parties’ properties granted an express easement that provided access to the plaintiff’s property, although one was never constructed.  Nevertheless, the court held that the plaintiffs did not present any additional evidence that access over the defendants’ driveway was reasonably necessary.

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There are several ways in which limitations may be imposed in Massachusetts property rights matters.  Some examples include local zoning bylaws, which may regulate aspects such as how far a structure must be set back from the street, and public easements, which may prevent the property owner from blocking off access with a privacy fence.  Deed restrictions are another means by which property use may be restricted, as in a September 12, 2019 Massachusetts property case decided by the Appeals Court.

The prior owner of the plaintiff’s land had received property from the city as part of its “Yard Sale” program.  Through the program, the city conveyed vacant lots to the owners of the abutting property, subject to an open space restriction.  Accordingly, the deed required that the land be used for open space purposes and prohibited construction of new structures on the lot.  The owners of the restricted lots were, however, allowed to build an addition on the house located on their original lot.

When the plaintiff purchased the lot from the prior owner in 2010, the deed conveying the property contained the same building restrictions.  Seeking to remove the restriction, the plaintiff filed an action for a declaratory judgment in Land Court, seeking to remove a restriction placed on her property.  The plaintiff argued that the deed restrictions violated public policy because they imposed an unreasonable restraint on alienation.  The Land Court disagreed and granted summary judgment against the plaintiff; the matter then came before the appeals court.

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A homeowner may file an action to quiet title in order to claim their ownership rights of the property in question.  In a September 4, 2019 Massachusetts property case, the plaintiffs brought an action in Land Court claiming ownership of a way that lined one side of their property.  The plaintiffs also sought a judgment that the defendant, a neighboring property owner, had no rights in or over the way.

The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue.  When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property.  The fence was installed by the previous owner of the defendant’s property.  It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way.  In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.

Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise.  The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way.  The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.

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The public generally enjoys an easement of travel over all public roads.  In rare circumstances, the public may also have a right to use a private way.  However, such a right does not include the broad rights of a public road.  In an August 21, 2019 Massachusetts real estate case, the plaintiffs brought an action in Land Court to establish a right of access over the defendants’ private roads.

The plaintiffs in the case owned two landlocked parcels of land, with no means to reach it from a public way or public road.  Rather, the only available access to the plaintiffs’ parcels was by using two private ways, which were located on the defendants’ properties.  In their Land Court action, the plaintiffs asserted that they had the benefit of a public right of travel over the defendants’ two private roads.

In Massachusetts, a private way may become a public way by prescription.  There also can be private ways, not dedicated to public use, that are nevertheless open to public use by license or permission of the owner.  Generally, establishing that a private way has become public is more difficult to prove than showing that a private way is open to the public.  The rights allowed in a private way open to the public, however, are much more limited than the easement rights afforded to the public in a public way and a public way by prescription.

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Massachusetts property transfers involve legal considerations that, if not taken into account, may have unintended consequences.  A July 3, 2019 case before the Appeals Court of Massachusetts illustrates how some of these issues may arise.  The case centered around the parties’ oral agreement for the purchase and sale of a house, and the subject of their legal dispute was the defendants’ failure to assume the mortgages on the property.

In late 2010, facing possible foreclosure on his house, the plaintiff in the case reportedly entered into an oral agreement to sell his house to the defendants.  In exchange, the plaintiff would receive a cash payment, the defendants’ assumption of the mortgages on the property, and payment of all property-related expenses.  In April of 2013, over two years after the defendants took possession of the house, and despite their good faith efforts, they failed to complete the assumption of the mortgage.  The plaintiff then filed an action in Land Court seeking to rescind the transaction and cancel the deed to the defendants.

In Massachusetts, rescission is a potential remedy for breach of contract, but rescission is not an available remedy for any and all breaches.  Generally, rescission is disfavored as a remedy for a mere failure to perform a promise.  To justify the remedy, a plaintiff seeking rescission must show that the breach deprived him of the essence of the agreement.  In the absence of fraud, the conduct of the defendant must be fundamentally adverse to the purpose of contact in order to be a ground for rescission of it by the other party.

In Massachusetts, there are two systems of tracking property title records.  Recorded land makes up the majority of property title record keeping, while a smaller percentage of properties in Massachusetts are governed by the registered land system.  Massachusetts guarantees title to registered land and as such, the requirements to register land are stricter.

As illustrated in a June 1, 2018 Massachusetts real estate case, there are advantages to the strict protections afforded to a property owner under the land registration system.  The dispute centered around the use and ownership of two parking spots in a condominium building.  The prior owners of the plaintiffs’ property had entered into an easement agreement allowing them to park two vehicles on a portion of their next-door neighbors’ registered land.  However, the easement agreement was not accepted for filing with the Land Court because it was not properly and fully executed, and a corrected, executed document was never registered.

In 2001, the plaintiffs purchased a condo unit with the understanding that they were acquiring an easement for the two parking spaces on the registered land next door.  For the next fourteen years, the plaintiffs parked in the spaces, until the defendants purchased the next-door neighbors’ property.  The plaintiff filed an action seeking to amend the certificates of title to both parties’ land to reflect a parking easement on the defendants’ property for the plaintiffs’ use.

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In many  adverse possession cases, the plaintiffs’ claim to property arises from a long-held, yet mistaken, belief that they own the land at issue.  This situation was presented in a May 28, 2019 Massachusetts real estate case before the Land Court.  The plaintiffs in the case filed an action against their neighbor, claiming title by adverse possession to a strip of land they had long believed was part of their property.

The land at issue in the case was a narrow, 13 foot wide strip of land on the side yard of the plaintiffs’ residence.  The plaintiffs’ property consisted of two lots, both of which had been owned by their parents, and before that, their grandparents.  From the time the second lot was conveyed to the plaintiffs’ family in 1949, they believed that two iron surveyors’ pipes marked the lot’s side boundary.  They cleared, used, and improved that area in the same ways they did for the rest of their property, fully incorporating it.

As a matter of record title, however, the plaintiffs were wrong about their ownership over the strip of land.  A survey of the lot conducted in 1948 had erroneously shifted its boundaries, and the two surveyors’ pipes were approximately 13 feet beyond the true record boundary of the second lot.  In fact, the record owner of the strip was the plaintiffs’ neighbor and the defendant in the case, who had acquired the adjacent lot in 1991.  The plaintiffs subsequently filed a claim in Land Court seeking a declaration that they acquired title to the strip by adverse possession.

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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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