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In Massachusetts, land use and ownership can be complicated after a parcel of property has passed through several owners over the course of many years.  In a March 3, 2018 case, the plaintiffs filed an action claiming that they had established a prescriptive easement to pass over part of the defendant’s land.  The matter was decided by the Massachusetts Land Court on summary judgment motions.green circle

The plaintiffs in the case owned a parcel of land that abutted property owned by the defendants.  The defendants’ property consisted of two parcels.  Originally, the two parcels were a single piece of land owned by another individual.  The original owner divided the land into two parcels in 1995, conveying one parcel to the defendants and keeping the other parcel for himself.  The plaintiffs and the original owner engaged in litigation over the parcel he retained until 2012, when the house on the property was torn down.  Eventually, the property was foreclosed upon, and the defendants purchased that parcel from the original owner as well.  The plaintiffs then asserted a claim that they had established a prescriptive easement to pass over a portion of the defendants’ land.  Specifically, the disputed area consisted of a section of the circular driveway on the defendants’ property, located on the parcel that had initially been retained by the original owner.

In Massachusetts, to establish a prescriptive easement, the plaintiffs must prove open, notorious, adverse, and continuous or uninterrupted use of the defendant’s land for a period of at least 20 years.  The defendants in the case argued that the plaintiffs could not establish their prescriptive easement claim because their use of the defendants’ property was permissive, and otherwise it was merely intermittent or sporadic.

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Local municipalities are primarily responsible for the upkeep of public county roads, a duty that would be burdensome for many average residents.  For this reason, the plaintiffs in a March 12, 2018 Massachusetts real estate case sought to establish that the road bordering their property was a public way.  The plaintiffs filed an action against the town and highway superintendent, arguing that the road was a public way, thereby requiring the town to repair, maintain, and remove snow for its entire length.road

In Massachusetts, land acquires the status of a public way if it is:  (1) laid out by the public authority pursuant to statute; (2) claimed by prescription; or (3) prior to 1846, dedicated by the owner to permanent and unequivocal public use.

In the case, the plaintiffs first contended that the road at issue was laid out by public authority.  Specifically, the plaintiffs alleged that the road was part of another road that had been explicitly laid out by the county commissioners in 1768.  The court rejected the argument, noting that the description of the public road in the record laid out by the county commissioners did not include the direction of the road at issue.

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It is not uncommon for mortgage lenders to assign or transfer their original loan to another financial institution, although it may be confusing to borrowers.  For homeowners involved in a mortgage dispute, guidance from a Massachusetts real estate attorney can alleviate the complexity regarding their rights against each bank.  In a March 15, 2018 case before the Appeals Court of Massachusetts, an improperly documented mortgage was the subject of a declaratory judgment sought by the plaintiff, as an agent of a bank, against the homeowners.foreclosure

The first mortgage on the defendants’ property was initially obtained in 2000.  In 2001, they refinanced that loan.  To do so, one of the defendants executed another mortgage with a second bank in order to satisfy and discharge the original mortgage.  Shortly thereafter, the second bank executed a blank assignment of the new mortgage and loan, which was subsequently altered to fill in the name of yet another bank, the assignee.

The plaintiff in the case was appointed as the servicer of the assignee bank’s mortgage loans in 2002, including the defendants’ mortgage, which was listed in a schedule with a pool of other loans assigned to the plaintiff.  In 2003, the defendants stopped making payments on their mortgage, and the plaintiff commenced an action against them in 2007.  In order to proceed, the plaintiff needed a declaratory judgment that the improperly documented mortgage was equitably subrogated to the prior first mortgage.  Several issues in the case were decided, appealed, and remanded before again returning to the Appeals Court of Massachusetts in 2018.

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In the real estate market, the zoned use or designation of a parcel of property can significantly affect its monetary value.  In a March 8, 2018 land use case, the property at issue was estimated to be worth $250,000 if it was a buildable lot, but only around $85,000 if the property had to be kept vacant.  After a local zoning board ruled that a single-family home could be built on the lot, the matter was appealed to the Massachusetts Land Court.cabin

The plaintiff in the case jointly owned the property at issue with his siblings and also owned the neighboring parcel of land.  The land court opined that while a decision allowing for a single-family home would typically be desirable to the property owners, the lower value attached to a non-buildable lot would allow the plaintiff to buy out his siblings’ interest in the parcel.  Accordingly, he brought the subsequent appeal.

The primary question for the land court was whether a local by-law allowed for a new residence to be built on the property at issue.  The relevant section of the by-law provided that, with respect to lawful, non-conforming residential structures, certain alterations as identified in the by-law should essentially be issued an automatic permit.  Specifically, in order for a building permit to be issued, there must be a non-conforming single-family structure on the property, the proposed alteration must not constitute a change in use and comply with current setback, building coverage, and height requirements, and the existing structure must be located on a lot that complies with the same requirements or has insufficient frontage.

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In Massachusetts, beach access can be a significant feature of a residential real estate property.  In a March 5, 2018 case, the primary issue before the Appeals Court of Massachusetts concerned the ownership of, and access to, a beach situated near the parties’ homes.  The Land Court had ruled that the plaintiffs held easement rights to access and use the beach by a 1929 deed and by implication.  The defendants appealed the Land Court decision to the higher court.path

An appurtenant easement allows for the use of a servient parcel of land in order to benefit a dominant parcel of land and the possessors of that land.  Appurtenant easements attach to and run with the land and consequently benefit subsequent possessors of that property as well.  If the appurtenant easement is expressly granted by deed, the deed must only reasonably identify the servient land, the dominant land, and the easement itself.

In the case, the 1929 deed expressly granted easement rights to the owner and subsequent owners.  It identified the easement as granting recreational use of the beach and shore located on the opposite end of the servient estate, currently owned by the defendants.  The defendants argued, however, that the plaintiffs were outside the record title chain and were not grantees of the easement.  The appeals court stated that appurtenant easements are not required to be recorded in the grantees’ title, and the successors of the dominant estate need not be specifically identified at the time of conveyance.  Instead, it is only required that the dominant and servient estates be reasonably ascertainable.  Since the plaintiffs possessed property comprising the dominant estate at the time of the May 1929 deed, therefore, they held easement rights to use the beach.

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If you are opposed to a local government decision regarding land use, you may be able to bring an appeal if you are an aggrieved person as defined by law.  In a February 16, 2018 Massachusetts land use case, the Land Court considered whether a plaintiff had legal standing to challenge a local zoning board decision that authorized the development of a vacant lot abutting his backyard.building

In the case, the local planning board granted a special permit to the town authorizing the construction of a group home for veterans who are either homeless or at risk of becoming homeless, using the town’s property pursuant to a bylaw providing for affordable housing.  The plaintiff, who owned abutting property, appealed the decision, contending that the board exceeded its authority in granting the special permit.  The defendants asserted that the plaintiff lacked standing to challenge the special permit.

In Massachusetts, people with abutting land are entitled to notice of a zoning board’s hearings and have a rebuttable presumption that they are aggrieved persons.  Nevertheless, abutters have the burden of establishing standing so that, if a defendant offers enough evidence to rebut the presumption, the plaintiff must prove standing by putting forth credible and direct evidence of a particularized injury.  The analysis is whether the plaintiffs have sufficient evidence to show they will be injured or harmed by proposed changes to an abutting property, rather than whether they will be merely affected by the changes.  One way a defendant can rebut the presumption is by showing that the claims of injuries raised by the plaintiff are not interests that the Zoning Act is intended to protect.

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In order to make certain improvements to your property, you may need approval from a local planning board.  If the process does not end in a favorable decision, you can appeal.  A February, 1, 2018 real estate case before the Land Court arose out of the plaintiffs’ efforts to develop their Massachusetts property.  They had applied to the town’s planning board, seeking approval of an improvement plan.  When the board denied their application, the plaintiffs appealed.  The case was eventually remanded back to the Land Court by the Massachusetts Court of Appeals, which reversed the ruling as to one of the plaintiffs’ claims.  Consequently, the matter was before the Land Court for a second time.fall

In the case, the only remaining issue to be resolved was the plaintiffs’ certiorari action. Certiorari is available if the proceeding is judicial or quasi-judicial, there are no other reasonably adequate remedies, and a substantial injury or injustice arose from the proceeding under review.  For the Land Court, the matter for review was the planning board’s decision.  The question for the court was whether or not there were grounds that a reasonable person would find proper to support the board’s decision.

The plaintiffs in the case sought approval of a plan that would allow their property to have adequate frontage on a certain way.  The application was submitted through the adequate access review process, which is used so that a way or street can be improved, without having to obtain definitive subdivision approval.  The limited circumstances in which these regulations may be applied require the way to meet the definition of a street under the by-laws, and the lot that has frontage on the way must have been in existence before subdivision control was adopted.  The plaintiffs were therefore required to demonstrate that both the way and the lot met the requirements provided.

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It may seem unusual that, despite owning a parcel of property, some non-owners may have a limited right to use a portion of it.  One of the legal devices to convey such use is called an easement.  In a December 20, 2017 case, a plaintiff filed an action with the Massachusetts Land Court to remove alleged clouds on the title to his property.  In two of the counts in his complaint, the plaintiff sought to establish that the defendants did not have the right or benefit of an easement over his land.  The parties’ lots were part of a subdivision they purchased from the developer.land

The parties filed cross-motions for summary judgment on the issues before the Land Court.  The plaintiff argued that the defendants had no right to use areas of his land that were designated as “cart paths” in the recorded deeds and subdivision plans.  The plaintiff also contended that the developer had no right to a private driveway easement that was referenced in the deeds as crossing his land.

The court first looked at the language of the deeds and other recorded documents to determine whether the defendants had rights over the cart paths on the plaintiff’s land.  While noting that the documents did depict the cart paths, the court explained that none of the deeds mentioned any rights that were granted or reserved over any of them. The court also pointed out that there were no facts to suggest that easements over the cart paths arose by implication, common scheme, or necessity.  Accordingly, the court ruled in favor of the plaintiff with respect to the cart paths, finding that the defendants did not have any right to use the cart paths on his land.

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Many people consult with a Massachusetts land use attorney before engaging in a particular activity on their residential property in order to understand relevant zoning restrictions.  While zoning is generally determined by the local government, in some cases, federal or state law may have an effect, as illustrated in a January 8, 2018 case before the Supreme Judicial Court of Massachusetts.helicopter

The plaintiff in the case was a licensed helicopter pilot.  He used his helicopter to travel to his various family homes and business appointments, but not for any commercial purpose.  Following the plaintiff’s request for a private helicopter landing area, the Federal Aviation Administration recognized his property as a licensed private use heliport.  The town building inspector issued an enforcement order, stating that the plaintiff was in violation of the local bylaws, since a heliport was not allowed in any zoning district of the town.  The plaintiff filed an appeal, which was denied by the zoning board.  The land court reversed the decision, and the Supreme Judicial Court of Massachusetts granted direct appellate review of the matter.

Pursuant to Massachusetts statutes, before a town acquires property to construct or improve an airport or restricted landing area, it must first apply to the Department of Transportation for approval of the site.  However, a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior approval; the landowner must simply inform the Department and ensure that the area is safely built and maintained in order not to endanger the public.  A later amendment to the statute provided cities and towns with the authority to enact rules and regulations, with Department approval, governing the use and operation of aircraft.

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To succeed in a Massachusetts adverse possession claim, the claimant must prove all of the elements required to establish his or her claim to a particular portion of land.  In a January 19, 2018 case, the land court considered a claim of adverse possession by an abutting landowner and claims to confirm title initially filed by a mobile home park company and followed by a substitute petitioner.  The history of the legal proceedings made it difficult to determine whether the landowner had established continuous possession of the area for the requisite period.snow

The mobile home company had commenced the original action in 1995, seeking to confirm title.  That action remained pending until, due to a dispute concerning whether the landowner had been properly served with the petition, special notice was sent to the landowner in 2006.  The landowner filed an answer, claiming title to a portion of the land based on adverse possession.  His claim was based on acts of adverse possession beginning in 1985, after he purchased his property.  The action continued to remain pending until 2018, when it came before the land court.

In Massachusetts, adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for a 20-year period.  The burden is on the party claiming adverse possession to provide clear proof of each element.  In the case, the landowner alleged that he staked a perimeter around his property, which included the land at issue, when he purchased the property in 1985.  He also planted trees in that area to be sold as Christmas trees, cleared land, allowed hunters to use the property, informed others the land was his, and posted no trespassing signs.  His activities continued to the time of the land court’s decision.

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