Published on:

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.

Continue reading →

Published on:

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.

Continue reading →

Published on:

Many foreclosure actions are complex, making them difficult to defend without assistance from a Massachusetts real estate attorney.  In a January 10, 2018 case before the Appeals Court of Massachusetts, a homeowner and her son were the defendants in a foreclosure summary process complaint brought by the mortgage company.  Although the defendants filed an answer pro se, the homeowner obtained counsel soon thereafter, who filed a new answer and counterclaims against the mortgage company.house

Following discovery, the mortgage company moved for summary judgment, contending that it had superior right and title to the property and that, due to the homeowner’s unsuccessful challenge of the validity of the foreclosure in 2011, her counterclaims were barred by res judicata.  The homeowner also moved for summary judgment, asserting that the mortgage company failed to provide proper notice of default.  Her motion was allowed, and judgment was entered.

The mortgage company then filed a notice of appeal, which was dismissed as premature due to the unresolved claims against the son.  After the mortgage company was granted a default judgment against the son, it filed a motion for reconsideration of its notice of appeal.  The appellate division denied it; however, its order allowed the mortgage company to file a new notice of appeal and thereafter perfect its appeal.  After the mortgage company filed the motions, the appellate division vacated the judgment for possession for the homeowner and entered judgment in favor of the mortgage company.  The homeowner subsequently appealed that decision.

Continue reading →

Published on:

Many property owners become concerned when areas in their neighborhood undergo zoning changes and are used for purposes not originally intended.  The landowners in a January 5, 2018 Massachusetts land use case took action after learning of zoning changes in their neighborhood.construction

In the case, the city council had approved a zoning amendment to rezone land owned by the defendants.  The city council had also granted the defendants a special permit approving their proposed development of the land.  The plaintiffs were nearby property owners opposed to the development and zoning change of land in their neighborhood.  In response to a rezoning decision made by the city council, they submitted a written protest to the city clerk.

Pursuant to Massachusetts law, if the requirements of the protest statute are met, the number of votes of the city council necessary to pass a zoning amendment is increased from two-thirds to three-fourths.  The plaintiffs in the case argued that their protest petition met the statutory requirements needed to require additional votes from members of the city council to approve the change.

Continue reading →

Published on:

Agreements concerning your property can be enforced by the court if they are not performed by the other party.  In a December 15, 2017 case, the Appeals Court of Massachusetts decided a dispute between the plaintiffs and a company that owned the  neighboring property.  The Massachusetts real estate case involved an agreement providing that the plaintiffs would grant an easement to the company in exchange for a section of the company’s land.  The plaintiffs subsequently brought suit to enforce the agreement.handshake

The agreement at issue stated that the plaintiffs would convey an easement to the defendants and allow the defendants to construct and maintain a retaining wall along the rear of the plaintiffs’ property.  The plaintiffs also agreed to arrange for another neighbor to execute a similar easement.  In exchange, the agreement provided that the plaintiffs would purchase a portion of the defendants’ lot that would square off the plaintiffs’ L-shaped lot.  The land transfer, however, was conditioned on whether it would adversely affect drainage resulting from the defendants’ proposed expansion.

The defendants argued that the agreement failed to provide many essential aspects of the parties’ agreement, and therefore, enforcement was barred by the Statute of Frauds.  The court agreed that the agreement was poorly constructed, since it lacked a purchase price for the land, it did not precisely define the location of the parcel, it incorrectly identified the owner of the parcel, and it did not contain a closing date.  Furthermore, the description of the parcel that was included did not seem to be what the parties intended.  However, the court held that since the plaintiffs performed their obligations under the agreement, and they relied on the defendants’ promise to convey the parcel, the matter was outside the Statute of Frauds.

Continue reading →

Published on:

Some parcels of land are subject to an easement, which allows people other than the owner to use the owner’s property for a particular purpose. If you believe you have an easement over land in Massachusetts, you can petition the land court for a declaratory judgment outlining your rights. In an August 9, 2017 Massachusetts property case, the plaintiffs sought a declaratory judgment in land court, arguing that they were the beneficiaries of two right of way easements across the neighboring landowner’s property.manuscript

In the case, the plaintiffs claimed they had the benefit of existing rights of way of record. The plaintiffs argued that the original deed to the defendant’s land conveying two parcels of land contained two easements, which they alleged actually existed as one continuous right of way. Since the plaintiffs owned the lands at both ends of the alleged continuous right of way, they contended that they were entitled to use and improve the right of way to access their land.

The land court first looked at the original deeds conveying the parties’ respective lots to determine whether an easement had been reserved. In Massachusetts, when an easement has been reserved in the grant of a parcel of land, the easement must be construed with reference to the deed and the circumstances when it was made. A reservation in a deed can only vest the grantor with a new right or interest. If the deed did attempt to vest a new right in a stranger to the deed, it would be void.

Continue reading →

Published on:

If someone files a frivolous real estate action against you, you may be able to recover your attorneys’ fees from defending against the claim. A December 18, 2017 case before the Massachusetts Land Court demonstrates this situation. In the case, a town sold a parcel of land to the defendants. Thereafter, the town filed an action against the defendants in land court, claiming that the parcel was subject to a restrictive covenant that only allowed for one residential lot.gavel

After evaluating the evidence, the land court ruled that there was no restrictive covenant created by reference in the deed to a subdivision plan, nor was an equitable servitude established without a sufficient writing. The land court also refused to rescind the conveyance on the ground that it exceeded the authority granted by the town in approving the sale of the parcel. The defendants subsequently filed a motion for attorneys’ fees, claiming that the court’s legal rulings led to a conclusion that the town’s claims were wholly insubstantial, frivolous, and not advanced in good faith.

In Massachusetts, a court may award reasonable attorneys’ fees and costs to a party if it determines that all or substantially all of the claims made by another party were wholly insubstantial, frivolous, and not advanced in good faith. A claim is not considered frivolous merely because the party was unsuccessful, but only when the court finds a total absence of evidentiary or legal support.

Continue reading →

Published on:

Property law can seem complicated, but an experienced Massachusetts real estate attorney can guide you through the necessary legal proceedings.  In a December 8, 2017 case, a boundary line dispute came before the Massachusetts Land Court for a second time.  The location of the boundary line was first addressed in 2010 with an 11-day trial.  The land court entered an amended judgment in 2011, describing the area at issue and defining the boundary.  That decision was subsequently affirmed by the Court of Appeals.snowy woods

The 2017 action arose after the parties realized that the 2011 judgment did not fully resolve the boundary dispute.  The 2011 judgment was based upon the parties’ agreement that all of the defendants’ property consisted of the land conveyed in an 1838 deed.  Unbeknownst to the plaintiff and the land court, nine months before the 2010 trial, the defendants acquired a trapezoidal parcel of land south of the property that, depending on the validity of the deed and location, might also abut the plaintiff’s property.  As a result, the adjudication of the parties’ common boundary line was potentially incomplete.

After learning of the deed, which was recorded long after the 2011 judgment, the plaintiff filed the current action to reopen the proceedings.  The limited issues were whether the grantor owned the trapezoidal parcel that was conveyed to the defendants, and if so, what was the location of the south boundary line between the parties’ properties.

Continue reading →

Published on:

Restrictions, often known as covenants, bind landowners to specific provisions concerning their property.  In a December 5, 2017 Massachusetts real estate case, the Appeals Court considered whether certain restrictions on land had expired, or whether the restrictions had been legally and effectively extended.  The plaintiffs in the case filed an action seeking to enforce the restrictions against the defendants.  After the lower court concluded they had expired and ruled in favor of the defendants, the plaintiffs appealed.houses

The original developer of the land had executed and recorded an agreement providing protective covenants and easements for future owners of the lots in 1980.  Thereafter, the developer sold off the lots, subject to the agreement that limited construction on each lot to one single-family dwelling with a two- or three-car garage, for a period of 30 years.  The agreement also provided that the covenants may be amended or revoked by the agreement of two-thirds of all of the owners of the lots.

In 2001, more than two-thirds of the lot owners executed an agreement to extend the covenants until 2010, and they recorded the extension in 2002.  The agreement also provided that the covenants could be extended for further periods of not more than 20 years by the agreement of two-thirds of the lot owners.  When the plaintiffs filed their action to enforce the restrictions, the defendants argued in response that the restrictions expired in 2010, after 30 years.

Continue reading →

Published on:

Confusion over boundary lines and property ownership can eventually lead to a legal action filed before a court.  Many Massachusetts adverse possession claims are argued before the Massachusetts Land Court, which shares jurisdiction with other courts over most real property cases in the state.  In a August 29, 2017 decision, the Land Court considered the plaintiffs’ claim that they had acquired portions of the defendant’s neighboring property, which consisted of a narrow strip of land bordering their lot and a concrete pad adjacent to that strip.snowy brick wall

In Massachusetts, title by adverse possession can be acquired if the claimant establishes, with clear proof, non-permissive use, which is actual, open and notorious, exclusive, and adverse for a period of 20 years.

The strip of land at issue in the case contained a pathway, retaining walls and low stone structures, a fence, and vegetation planted by the plaintiffs.  The Land Court found that the plaintiffs’ improvements and maintenance of the pathway and planting bed area were sufficient to constitute actual use for the purposes of adverse possession.  Specifically, the plaintiffs’ construction of a rock wall, retaining walls, and fence were permanent improvements to the property ordinarily associated with ownership.  The court also held that the fence and stone walls surrounding the strip were sufficient to show that the plaintiffs’ use of the area was open and notorious, thereby putting the record owner on notice of their claim to the area, as well as exclusive.  The court explained that the fence enclosed the cleared pathway and planting bed area as if it was an extension of the plaintiffs’ property.  Finally, evidence that the plaintiffs had used the strip of land since they had moved into their house in 1982 satisfied the 20-year required period of possession.  Accordingly, the court ruled that the plaintiffs had established their ownership of that narrow area by adverse possession.

Continue reading →

Contact Information