Articles Posted in Title and Ownership

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Understanding your rights in real property may be crucial when making legal decisions concerning that property, as illustrated in an August 15, 2018 Massachusetts real estate case.  The dispute centered around property that had been the plaintiff’s home since 1987.  The plaintiff had initially owned the property, but he lost it to foreclosure in 1994.  The plaintiff continued residing in the house, however, after convincing a friend to purchase the house from the foreclosing bank and rent it to him.  The plaintiff hoped to buy the house back after his credit had improved.

In 2003, the house was sold to the defendant, another friend of the plaintiff.  The defendant promised to sell the property back to the plaintiff several times.  Each time, however, the plaintiff failed to close on the property through no fault of the defendant.  The last purchase and sale agreement was executed by the parties in 2015, and the defendant agreed to four extensions of the closing through the following year.  When the plaintiff did not close, the defendant initiated eviction proceedings.  In response, the plaintiff filed an action to impose a constructive or resulting trust over the property, claiming that he had been the property’s rightful owner all along.

A constructive trust is created by the court to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty, mistake, or other circumstances in which the title owner’s retention of legal title to property would result in unjust enrichment.  A constructive trust is not a true trust.  However, once a court determines that a constructive trust exists, the court can order the unjustly enriched party to transfer the property to the beneficiary of the constructive trust.

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Dividing property held in joint ownership may require a court order in cases where the owners cannot reach an agreement.  In a September 5, 2018 Massachusetts real estate case, the Appeals Court reviewed an order of a lower court dividing the property owned by the parties.

The parties in the case owned two noncontiguous parcels as tenants in common.  The plaintiff filed a petition for partition, alleging that physical division of the property was impossible and seeking a sale of both lots.  The lower court divided the property by awarding the more valuable parcel to the defendants, with a monetary payment to the plaintiff to make up the difference in value.  The plaintiff appealed, arguing that the lower court should not have relied on appraisals to determine the value of the property, and instead, should have ordered a public or private sale.

In a Massachusetts partition action, a sale is not simply an equally available alternative to a physical division.  Nor does the difficulty and complexity of achieving a just and equitable physical division of the property, alone, justify a sale.  Rather, the court may only order a sale after it determines by a preponderance of the evidence that the land cannot be divided advantageously.  Generally, the advantage or disadvantage of a division must be a pecuniary one.  The judge may take into account the physical condition of the land to be divided, together with any potential damage to the profitability of the land.  In cases involving multiple noncontiguous lots, as here, the court may divide the property by awarding intact lots to the various parties, rather than by physically dividing each lot by metes and bounds.

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In Massachusetts, a right of way easement may be legally recognized or established in different ways.  In an August 10, 2018 case, adjacent property owners brought their dispute regarding a right of way easement before the Massachusetts Land Court.  The defendants in the case claimed the right to use a right of way located on the plaintiff’s property.  The plaintiff argued that the defendants had no right to the easement because the right of way was not specifically mentioned in the plaintiff’s certificate of title.

In Massachusetts, a person with a certificate of title to property receives the property free from all encumbrances except those noted on the certificate.  Registered land, therefore, generally cannot be burdened with an easement unless it is shown on the certificate of title.

A property owner may, however, take property subject to an unregistered easement under two narrow exceptions.  First, registered property may be encumbered by an easement if there are facts described on a certificate of title which would prompt a reasonable purchaser to investigate the issue further, such as by examining other certificates, documents, or plans in the registry system.  Second, registered property may be subject to an easement where the purchaser has actual knowledge of a prior unregistered interest, such as an easement.

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The purchase and sale agreement between a buyer and seller of property contains important details about the transaction.  A Massachusetts real estate attorney can explain the terms of the purchase and sale agreement so that a home buyer understands the consequences of signing the contract.  In an August 3, 2018 case before the Massachusetts Land Court, the plaintiffs filed an action against the subdivision developer that sold them their home.  The dispute concerned the ownership and use of a lane to access other houses within the subdivision.The plaintiffs in the case purchased their house from the defendant in 2002.  The defendant retained ownership of several acres of land abutting the plaintiffs’ property, intending to develop the parcel as a multi-house subdivision.  The defendant therefore insisted upon a rider to the parties’ purchase and sale agreement, providing that the plaintiffs agreed not to interfere with the planned subdivision and acknowledged that the defendant may grant an easement on the property to serve that subdivision.

In 2017, the defendant finally received approval to build 20 homes on the parcel abutting the plaintiffs’ property.  The permit also allowed the defendant to build a lane providing access to a street from the subdivision.  The plaintiffs filed a quiet title action against the defendant, asserting that the easement was intended to serve a maximum of four homes and that the easement would be overburdened by a lane serving the proposed subdivision.

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A disagreement between property owners regarding their respective boundary lines may lead to legal action.  In a July 30, 2018 opinion, the Massachusetts Land Court decided a case concerning the ownership of a disputed area along the boundary line between the parties’ properties.  The area at issue was the driveway separating the two properties.  The plaintiffs in the case brought an action against the defendant to quiet title, claiming ownership over the entire portion of the disputed area pursuant to their deed.The driveway at issue was used by both parties to enter and exit their respective properties.  When the defendant purchased her property in 1998, there was a wood board affixed to the driveway that ran the length of the two houses, indicating a boundary line.  When the plaintiffs purchased their house in 2002, they understood that they were entitled to use the entire driveway between the properties, and they did so.  At some point, however, the defendant told the plaintiffs that the boundary line was down the middle of the driveway and that the plaintiffs could not use or drive on her side of it.

In 2013, the defendant had a survey done of her property to determine the location of the boundary line on the driveway.  The plaintiffs, in turn, obtained a survey in 2015 and sought a second survey thereafter.  The defendant sought a permit and constructed a four-foot fence on the driveway.  The plaintiffs obtained a third survey in 2016, which showed that a portion of the driveway and the defendant’s fence were located on the plaintiffs’ property.

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In certain instances, using a private road on another person’s property over many years may give rise to a property interest.  In a June 26, 2018 Massachusetts real estate case, the plaintiffs had been using the defendants’ private road to access a main throughway from their property.  They filed an action in land court arguing that they had acquired an easement over the road.

In the case, the plaintiffs’ house could be reached by taking one of two different routes from the main road.  Using the road in dispute, which was located on the defendants’ property, was the easiest and quickest route.  When the plaintiffs purchased their home in 1993, they had assumed that use of the disputed way was conveyed by the deed to the house, which provided “a right of way to the Public Highway.”  Accordingly, the plaintiffs had used the disputed way from the time they moved in, believing they had a right to do so.  In the midst of the instant disagreement with the defendants, the plaintiffs learned from their attorney that they had misinterpreted their deed, and that the right of way merely referred to the street on which their house was located.  Nevertheless, the plaintiffs filed an action against the defendants, claiming that they had acquired a private easement by prescription over the disputed way.

In Massachusetts, a claimant may be entitled to a prescriptive easement over the land of another if it is shown by clear proof that the use of the land has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of at least twenty years.

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Some restrictions on property are limited in their duration, often either through the express terms of the instrument or by statute.  In a May 18, 2018 Massachusetts real estate case, the issue concerned the water usage rights of a local town in a lake located on the defendant’s property.  The parties disputed whether the town still had the rights, or whether the rights had since reverted back to the owner of the lake.

In 1958, the prior owner of the defendant’s land had conveyed flowage and usage rights of the lake to a business entity.  The entity, in turn, conveyed the rights to the town in 1972.  These rights were subject to a reversionary interest in favor of the grantor and his successors.  This meant that, if certain conditions were not met, the town would lose its rights in the lake, and they would return to the current owner of the property.  Specifically, if the town failed to maintain the dams or impound the waters of the lake as agreed in the 1958 conveyance, the grantor or their successors could, at their option, record a written declaration that would effectuate their reversionary interest.

In 2016, the defendant recorded an instrument that purported to effectuate its reversionary interest in the rights that were conveyed in 1958.  The town, in turn, filed an action seeking to quiet its title to the flowage and usage rights it obtained in 1972.  Although the town conceded that it had not maintained the dams and impounded the waters of the lake, as required by the conveyance, it argued that under Massachusetts law, the original grantor or successors had only 30 years to make the necessary record to effectuate their reversionary interest.  The town asserted that since they failed to record a declaration within the 30-year period, the town acquired absolute ownership of the flowage and usage rights.

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An easement is the legal right to a particular, limited use of property by someone other than the owner of the property.  In some cases, the existence of an easement may become unclear after the property has passed down through different owners over many years.  In a February 23, 2018 opinion, the appeals court considered a Massachusetts real estate action involving the plaintiffs’ claim to a right of way easement over the defendants’ land to access a main road.

The plaintiffs in the case owned a four-acre oceanfront parcel of land.  The first mention of the easement at issue was in a 1927 deed, through which the original grantor conveyed a portion of his land.  That portion was eventually owned by the plaintiffs.  The 1927 deed included an easement consisting of a right of way from the north side of the parcel to “Beach Road.”  The easement appeared with the same language in each subsequent deed conveying the parcel of land, but it was not precisely identified.  Through other deeds in 1927, the original grantor also conveyed the property currently owned by the defendants, which contained a way to access Beach Road.

In 1999, the plaintiffs divided their parcel into two lots and sold one of them to a third party.  However, the plaintiffs did not expressly reserve a right of way over the lot they sold.  Subsequently, a dispute arose over the location of the 1927 easement.  The plaintiffs alleged that the easement began at a point on the road that adjoins their property and crosses over the defendant’s land to meet Beach Road.  The defendants argued that the right of way began from the lot no longer owned by the plaintiffs.

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The property interests of condo unit owners are typically defined in the Master Deed.  If legal disputes arise regarding the residents’ usage of the common areas, facilities, or parking garages of their building, the Master Deed may determine the rights of the respective parties, as in a May 14, 2018 Massachusetts real estate case.  The case involved a dispute among condominium owners over parking rights.

The plaintiffs in the case owned Unit One in a residential condominium containing three units.  The plaintiffs filed a complaint in the Massachusetts Land Court, seeking a declaration that they have rights to the exclusive use of two and one-half parking spaces within the condominium’s common area.  The defendants owned Unit Two in the condominium.  The defendants argued that, in accordance with the original Master Deed and Unit deeds, each unit has the right to the exclusive use of only one parking space.

In determining the rights of the parties, the land court reviewed real estate documents, including the Master Deed.  The Master Deed provided that each unit in the condominium shall have an appurtenant right to the exclusive use of one parking space to be either assigned to each unit by written designation in the initial Unit Deed for each unit, or if not assigned in the initial Unit Deed, to be assigned by the Condominium Trust.  However, none of the initial deeds in the condominium actually included an assignment of a parking space.

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Over many years, the discontinued use of a public road or way could lead to a dispute over ownership, as in a May 9, 2018 Massachusetts real estate case.  The plaintiffs filed the action in the Land Court, seeking a determination that a short, partially paved, and gravel way passing over the defendants’ properties was part of a public way, and furthermore, that it remained a public way today.  Conversely, the defendants argued that it was a private way.  To decide the issue, the Land Court looked at records of the creation of the way from 1816, when the town voted to accept a road laid out in the area of land currently owned by the defendants.

In Massachusetts, a way is not public unless it has become so through one of three ways.  First, it may be laid out by public authority in the manner prescribed by statute.  Second, it may become a public way through prescription.  Lastly, prior to 1846, an owner could dedicate the way to public use, and upon acceptance by the public, it could become a public way.  Under the facts of the case, the area in dispute could only be a public way if it was laid out as such by the town.

Once a public way has been duly laid out, it will continue to be a public way until it is legally discontinued.  Generally, the courts will not assume that public officials have abandoned a highway easement without an act on the part of the property authority to discontinue its status as a public way.  Nor will mere non-use or apparent abandonment of a public way by a town result in the discontinuance of its public status.  In the case, there was no evidence that the disputed area was discontinued.  As a result, if it was properly laid out as a public way in 1816, it would retain that status presently.

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