Articles Posted in Title and Ownership

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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Individuals seeking to improve a private road will generally need the consent of the owner, even if they have some property rights to use the road.  In a December 4, 2018 Massachusetts real estate case, the plaintiffs initiated legal action against the defendant in Land Court after he refused to allow them to pave the sole road providing access to the parties’ homes.  The defendant did not dispute that the plaintiffs held some type of an easement to use the road; however, he argued that they did not have the right to pave the road over his objection.

The parties owned seasonal homes on a secluded peninsula, which were accessible via one gravel-surfaced, private roadway.  The defendant was the fee owner of the gravel road, which was located on his property.  The roadway led to the plaintiffs’ house and continued past the defendant’s own house, serving a total of ten homes on the peninsula.  The plaintiffs wished to pave the road for easier travel and less damage to their vehicles, and because they believed it was a reasonable improvement.  The defendant believed that paving the road was unnecessary, and argued that doing so would worsen the road drainage problems, lead to non-residents’ use of the private road, allow cars to drive faster through the area, and overall change the feel of the small neighborhood.

Following a trial, the Land Court found that the plaintiffs had a prescriptive easement.  Their prescriptive easement was created by continued use of the road for the required statutory period.  Accordingly, the extent of their easement was limited to the use through which it was created, i.e., travel to and from their house.

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Surveying historical boundaries of lands in Massachusetts can be a complex task.  It may require searching and deciphering markings, monuments, and records that are many years old.  In a November 5, 2018 Massachusetts property case, the Land Court faced several obstacles as it attempted to determine an accurate boundary line between two parcels of land.  The case originated when the plaintiff, seeking to resolve the question, filed an action to try and quiet title against the owners of the adjacent parcel.  The defendants, in turn, filed multiple counter-claims against the plaintiff.  The parties ultimately agreed to narrow their dispute into a single issue to be decided at trial, namely, the boundary between the properties.

The lands had been previously owned by two brothers, who had inherited them in 1942 as a large, single tract of property.  In 1961, the brothers divided their lands into two parcels, which became the lands currently owned by the parties in the case.  The brothers decided to skip the expense of a surveyor, however, and described the boundary line between their lands themselves, using monuments and markers.  In particular, the brothers referenced an old road marked by pipes and stones, a brook that had disappeared long before 1961, a bridge that no longer existed, and a heap of stones on a ledge of a ravine.

In order to determine the entire boundary between the formerly unified lands, the Land Court needed to find the exact locations of the ill-defined monuments described in deed.  To identify the location of the old road, the court reviewed a plan prepared by a surveyor in 2013.  The court concluded that the plan accurately depicted the road, noting that its location corresponded with maps from 1980 and 1986.  Although the maps were not professionally surveyed, they were prepared pursuant to state regulations for the plaintiff to submit a state-mandated forest management plan.  The bridge and brook were located by a geotechnical engineer and found to be consistent with the defendant’s testimony about statements that the prior owner made concerning the property line.

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