Massachusetts Real Estate Lawyer Blog

Parking Dispute Over Driveway Easement Leads to Massachusetts Real Estate Action

Published on: November 5, 2019 | by Pulgini & Norton, LLP

When a driveway is shared by two neighboring properties, the owners’ legal right to use the driveway is commonly provided through an easement. Overuse or obstruction of the driveway easement may lead the property owners to take legal action, as in an October 28, 2019 Massachusetts real estate case.

The plaintiff in the case had an express right-of-way easement, provided by deed, over ten feet of the defendants’ property. The easement contained a paved driveway, which started at the street and extended the full length of the boundary line between the parties’ properties to the back of their lots. The easement allowed the plaintiff to drive her vehicle from the street and over the driveway to the area behind her house, where her garage and off-street parking area were located.

When the defendants purchased the neighboring property in 2015, they began parking their two vehicles on the front part of the paved easement, bumper to bumper. In addition, contractors and other invitees to the defendants’ house would also park there. The plaintiff filed an action in Land Court, seeking a permanent injunction giving her full, unobstructed use of the entire right-of-way at all times, and prohibiting the defendants and their guests from parking on the driveway.

Court Determines Easement Rights Over Beaches in Massachusetts Real Estate Action

Published on: October 29, 2019 | by Pulgini & Norton, LLP

In a Massachusetts real estate action, a claimant may assert multiple legal grounds to establish their ownership or other rights in a particular parcel of land. In an October 24, 2019 case, the plaintiffs brought an action seeking an adjudication as to their easement rights over two beaches owned by the defendants. Their claims were based on an express grant in their chain of title, as well as a prescriptive easement.

The parties in the case had a decades-long history in the area that began in their childhoods. The plaintiffs had spent summers in the area with family friends, who were the prior owners of their property. Beginning in the 1970s, the plaintiffs and their friends would use the entire portion of the beach, as there was no distinction made among the beaches within the layout of the adjacent properties at the time. Following the death of the prior owner, the plaintiffs’ family acquired the property in 2000. Thereafter, the plaintiffs and their families used the beaches whenever the weather permitted.

Starting in 2008, the defendants that owned one of the beaches in dispute reportedly posted “no trespassing” signs on the beach and sent no trespassing notices to the plaintiffs. In 2011, the defendants installed a video surveillance system, which included a camera pointing at the beach. In addition, the defendants began calling the police when they observed the plaintiffs on the beach. The plaintiffs subsequently brought a legal action in Land Court to determine the parties’ respective rights in the area beaches, including a second beach belonging to another set of defendants.

Massachusetts Property Owners Bring Competing Claims for Title to Marshland Area on the Coast

Published on: October 23, 2019 | by Pulgini & Norton, LLP

Issues concerning ownership and property boundaries may be brought before the Massachusetts Land Court to decide. In an October 10, 2019 Massachusetts real estate case, multiple parties brought competing claims regarding their respective rights to a section of marshland on the coast of a peninsula. The parties involved in the case were three neighbors who each owned separate properties that abutted the disputed area, and the local town.

The area in dispute was a strip of land between the high-water mark and the low water mark along a section of the coast of a peninsula. The area itself was a salt marsh, covered in tall grass, deep mud, and completely underwater at high tide. As such, it was unsuitable for use as a beach and enjoyed primarily as an area to look out over to see sunrises, bird migrations, and boats in the bay.

To determine the ownership issues, the Land Court first investigated the history of the initial partition and examined the descriptions contained the original deeds to the parties’ properties. At one time, all of the land in the peninsula was communally owned by a Native American tribe. In the mid-1800s, most of the land was partitioned into several tracts, with the exception of the marshland around the coast. Years later, the marshland was gradually divided, and then subdivided into smaller set-offs. The set-off descriptions in the deeds allowed the court to find that one of the plaintiffs held record title to part of the disputed area. The court went on to identify the boundaries and record title locations of the marsh areas owned by the rest of the plaintiffs.

Massachusetts Property Owner Seeks Permit to Rebuild Non-Conforming Cottage Destroyed by Tornado

Published on: October 16, 2019 | by Pulgini & Norton, LLP

In general, new homes must be constructed pursuant to the current requirements of local Massachusetts real estate zoning bylaws. Under some circumstances, however, the zoning bylaw may provide for an exception, such as for existing structures. In an October 7, 2019 opinion, the Appeals Court of Massachusetts considered whether a cottage that had been destroyed by a tornado could be reconstructed under a local bylaw provision for existing structures.

The plaintiff and the defendant in the case were two of the five family members who owned a parcel of land. The property had contained a non-conforming, 800 square foot seasonal cottage built in 1939 by the previous owners. In June 2011, the cottage was destroyed by a tornado that ripped through the area. A dispute arose between the plaintiff, who wished to rebuild the cottage, and the defendant, who wished to maintain the property as open land for private conservation and recreational purposes.

The plaintiff nevertheless contacted the local building commissioner to inquire about a building permit for a new single-family residence. The building commissioner agreed to allow the residence pursuant to an exception for existing structures under the local bylaw. The decisions issued by the zoning board and Land Court were appealed and the matter subsequently came before the Appeals Court of Massachusetts.

Massachusetts Homeowners Acquire Easement Rights Over Their Neighbors Driveway Through Prescriptive Use

Published on: October 10, 2019 | by Pulgini & Norton, LLP

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.

Massachusetts Homeowner Seeks to Remove Building Restrictions Imposed by Property Deed

Published on: September 27, 2019 | by Pulgini & Norton, LLP

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.

Massachusetts Property Owners Appeal Denial of Building Permit to Construct Single Family Home

Published on: September 20, 2019 | by Pulgini & Norton, LLP

If you are planning to construct a new home on your recently purchased property, a Massachusetts real estate attorney can guide you through the legal process. Typically, new residential construction is subject to local zoning laws, illustrated in a September 16, 2019 case.

The plaintiffs in the case had reportedly applied for a building permit in 2008 to construct a single-family residence on their land. The town building commissioner denied that permit and, after exhausting their appeals with the local zoning board and Massachusetts Land Court, the plaintiffs revised their plans. In 2018, they reapplied for a permit using the revised plans. When the 2018 permit was denied for a second time, the plaintiffs once again sought review of the decision in the Land Court.

Under the local zoning bylaws, a building or structure in a residential district must be at least 60 feet from the street. There is an exception, however, if there is a principal building within 500 feet of, and on each side, of the proposed building. In such cases, the proposed building may extend as far as the neighboring buildings.

Plaintiffs File Massachusetts Title Action Against Neighbor to Claim Ownership of Private Way

Published on: September 13, 2019 | by Pulgini & Norton, LLP

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.

Plaintiff Prevails in Massachusetts Adverse Possession Claim Against Property Developer

Published on: September 10, 2019 | by Pulgini & Norton, LLP

Gathering evidence to support an adverse possession action can be daunting, but a Massachusetts real estate lawyer can assist you in putting forth the strongest case possible. The plaintiff in an August 29, 2019 case succeeded in establishing title by adverse possession to two separate areas of land abutting her property. The Appeals Court of Massachusetts affirmed the decision of the lower court after examining the evidence she presented to make her case.

The plaintiff in the case purchased her home in 2000. To the west and south, her property directly abutted an undeveloped, wooded land owned by the defendant. The west area was a mowed, grassy area, with no permanent improvements. The south area was largely covered by a paved basketball court, with one permanent post, backboard, and hoop.

The defendant did not dispute that the plaintiff had established the elements of adverse possession over the west and south areas during the 14 years that she has owned her property. Rather, the question was whether the plaintiff could prove that the prior owner of her property had also met the required elements for the remaining 6 years, in order to establish a 20-year period of adverse possession.

Plaintiffs Succeed in Massachusetts Land Court Action to Establish Right of Access Over Private Roads

Published on: August 29, 2019 | by Pulgini & Norton, LLP

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.