Fence Disputes: Five Things Every Massachusetts Property Owner Should Know

I recently settled a case involving a fence dispute, which occurred between two neighbors who weren’t getting along. Fence disputes, believe it or not, are one of the most common types of boundary disputes, and most often arise when a property owner seeks to erect or take down an existing fence.

This case reminded me of some important advice that every Massachusetts property owner should know about these matters.

Location Matters

It may sound obvious, but it is worth mentioning: a property owner can only erect a fence on their property. Placing a fence on your neighbor’s property can quickly lead to a fence dispute and, in the worst case scenario, a court order mandating the immediate removal of the fence.

To avoid this, ensure that your fence is on your property. A plot plan or survey can be helpful in determining your boundary lines.

Fences Can Lead to Adverse Possession Claims

A claim of adverse possession occurs when a person uses property that is not theirs for an uninterrupted period of twenty years, without the record title owner’s permission. Adverse possession follows the rule of “use it or loose it.” If someone else is using your property, you can run the risk of it eventually belonging to someone else.

One of the requirements for adverse possession is exclusive use: showing that the property was within the exclusive use and control of the other party. Massachusetts courts have held that the placement of a fence is a strong example of an adverse possession claim because it puts the property owner on notice that someone else is using their property. For example, if a homeowner erects a fence which encroaches several feet of their neighbor’s yard, and makes use of this property as their own for twenty years, a claim of adverse possession may arise.

For this reason, property owners need to be aware of potential adverse possession claims when erecting fences.

Exercise Care When Removing Trees

Building or taking down a fence often involves the removal of trees and other vegetation. If this applies to you, proceed with caution. Massachusetts law imposes steep penalties for willfully cutting down someone else’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Boundary Disputes Can Become Contentious Quickly

When it comes to land, even the smallest boundary dispute can become a source of friction between land owners. This is an important factor to keep in mind when dealing with a fence dispute. An overly aggressive approach to one of these matters can inflame tempers and lead to unnecessary legal expenses and time in court. For this reason, always try to find an amicable resolution to one of these matters first.

Consult An Attorney If All Else Fails

Of course, some fence disputes (like any other legal matter) can not always be resolved on their own. If you find yourself in such a scenario, strongly consider speaking to an experienced real estate litigation attorney.

Attorney Sherwin to Argue Real Estate Contract Case Before Massachusetts Appeals Court

foreclosure appeal

This Tuesday, I’ll be before the Appeals Court on a case concerning a real estate contract. I won a trial several years ago involving a contract dispute, and the other side has appealed. This is an interesting case that concerns some important topics on real estate contracts.

Appeals Process

In an appeal, a party is asking a reviewing court (known as an appellate court) to determine if the trial court made any errors in law. It is generally not enough to simply argue that the lower court made the wrong decision in the case. Rather, a successful appeal requires a showing that the lower court misapplied the law.

No new evidence is introduced in an appeal. The record is limited to the testimony and exhibits from trial. Each side is permitted to file a written argument to the court, known as a brief, and argue their side of the case to the court, known as an oral argument.

Lessons for Real Estate Contracts

This appeal concerns a couple of important topics relevant for real estate contracts.

Oral Agreements To Sell Property

Most people are familiar with the requirement that a sale of property needs to be in writing to be enforceable, known as the statute of frauds. It is a common misconception, however, that oral agreements for the sale of property can never be enforced. In certain circumstances, the law will not allow a party to avoid enforcement of an oral contract for real estate.

In this appeal, the contract was oral. However, the parties to this agreement changed their circumstances in reliance of this oral agreement, and partially performed it: a recognized exception to the statute of fraud.

This is a critical lesson for anyone involved in a real estate contract: do not assume that, because an agreement may be oral, there are no repercussions for failing to perform. As with any legal agreement, one should speak with an experienced attorney and proceed with caution.

Getting Out of a Contract

This appeal also concerns another important part of contract law: when can someone “undo” a contract? The “undoing” of a contract, known as a rescission, generally requires there to be a complete abrogation of the agreement. In other words, if a party really fails to do what they are supposed to, the other party may have the option of asking the court to cancel the contract. My appeal is primarily about this issue: whether or not one of the parties did their required obligations under the contract.

It is important to understand that the right to rescind an agreement is a high burden to meet. Courts will not allow rescission when a party has merely breached such an agreement, generally, it must be shown that an “utter failure of consideration” occurred.

This is important for anyone entering into a real estate contract agreement to know. Getting out of such an agreement is no guarantee, and the law provides powerful remedies for enforcing these agreements.

Conclusion

If you need assistance with a real estate contract matter, contact me for a consultation.

Forum Selection Clauses in Massachusetts

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The Massachusetts Appeals Court issued an important decision last week concerning forum selection clauses in Massachusetts. While the case didn’t concern a real estate matter, these clauses are often found in real estate contracts, making it relevant here. The case, Empire Loan of Stoughton v. Stanley Convergent Security Solutions, Inc., is included below.

Case Overview

This case concerned a breach of contract dispute between two businesses: a Massachusetts corporation and a Delaware corporation doing business in Massachusetts. These corporations entered into a contract for the installation of security systems, and a lawsuit arose after one of the businesses alleged that the other failed to properly maintain and monitor one of its security systems. One of these businesses sued the other in a Massachusetts court, and the court dismissed the lawsuit due to a forum selection clause in the parties’ contract.

What is a Forum Selection Clause?

A forum selection clause allows parties in a contract to pick the location where any lawsuits arising out of the contract should be heard. Here, the parties agreed to Connecticut. Because the business sued in Massachusetts, the court dismissed the case.

Empire Loan discusses the standard for determining whether one of these clauses is enforceable. The party in favor of the clause must show the clause was reasonably communicated and accepted.  The party opposed to the clause must show it is unfair and unreasonable.

The Appeals Court found that this forum selection clause was permissible largely because the opponent of the clause did not dispute reading the entire contract and agreeing to all of its terms. Moreover, the record supported that the parties negotiated the entire agreement.

Practical Implications

Empire Loan has important implications for anyone entering into a contract . . . especially in real estate. Forum selection clauses can (and will) be enforceable if they are fair and reasonable. This decision suggests that courts will not have too much sympathy for parties who freely and willingly sign agreements of these type. Simply put, a party who signs a contract with a forum selection clause can be stuck with it.

That’s not to say that every one of these clauses are enforceable. A party entering into one of these contracts, however, should give consideration to the implications of one of these clauses before signing.

Conclusion

If you need assistance with a real estate contract dispute, contact me for a consultation.

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Zoning Decision Making in Massachusetts

A recent decision from the Appeals Court discusses the important topic of Massachusetts zoning decision making, regarding what a zoning or permitting board is allowed (and not allowed) to consider as part of its decisions.  The case, Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury, is included below.

Background

This case concerned two businesses attempting to erect a digital billboard in Salisbury.  For reasons that are not completely clear in the decision, these applicants needed final approval for a billboard from the state’s Department of Transportation Office of Outdoor Advertising.  Prior to this step, the applicants firs needed approval from the Town of Salisbury’s Zoning Board of Appeals

Per the towns’  local ordinance, a decision for approving these signs required a special permit.

What is a Special Permit?

A special permit is a form of land use decision making, which gives a permitting board authority to approve or deny a particular use of property.  Compared to a variance, the requirements of a special permit are less stringent.  The requirements for a special permit often include a detailed list of criteria that the permitting authority must consider in its decision.

Zoning Decision Making

In this case, the zoning board of appeals decided to grant a special permit to only one of the two applicants.  The problem?  Both applicants qualified for the special permit.  Nonetheless, the board only gave approval to one of the signs.  While not clear from the decision, the reason for this appears to be that, because the state could only pick one of the two applicants in the end, the zoning board of appeals could select between the two billboards, despite both qualifying for the special permit.

Not so fast, ruled the Appeals Court.  The Court held that the board erred because it considered criteria outside the special permit requirements.  Since both qualified for a special permit, the board was wrong to deny one of these applicants the special permit.  Doing so made the board’s decision legally untenable.

Practical Implications

This case is an important reminder that the scope of zoning decision making is not unlimited.  While zoning authorities often have discretion in making these decisions, they do have to stick to the guidelines provided in their municipalities’s zoning ordinances and state law.  Consideration of any other factors runs the risk of the zoning decision being defeated in court.

Conclusion

If you need assistance with a zoning or land use matter, contact me for a consultation.

Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury

Massachusetts Zoning: What You Need to Know

A recent article about Medford, concerning the challenges of getting past the city’s land use controls, is a good example of the importance of understanding Massachusetts zoning when seeking to develop property.  The article discusses many of the hurdles that can arise when attempting to seek zoning approval from a local municipality.

Overview of Massachusetts Zoning

Zoning are rules and regulations controlling how one uses their property.  The purpose of zoning is to keep order and consistency within municipalities.  Visit a city without zoning controls and you’ll see the reason why such regulations are in place.

Zoning ordinances generally consist of dimensional and use controls for real property.  As discussed in this article, these ordinances are often complex and highly detailed.

Exemptions from Massachusetts Zoning 

Massachusetts zoning often becomes an issue when a property owner is unable to comply with a zoning ordinance.  In such a case, a variance is required.  A variance requires a finding that:

[O]wing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Additionally, some uses under a town or city’s zoning ordinance require specific approval by a local zoning permitting authority, known as a special permit.  The requirements for a special permit are not as rigorous as a variance, but a special permit must still be approved by the appropriate town or city board (often the zoning board of appeals or planning board).

In addition to zoning, there are often other regulations concerning real estate development, including environmental, historic preservation, and affordable housing requirements.

Conclusion

Massachusetts zoning requirements can be confusing.  For assistance with this process, consider speaking with an experienced real estate litigation attorney, who can assist with this process. 

Attorney Sherwin Named as a 2018 Massachusetts Super Lawyers Rising Star

I’m proud to write that I’ve been named as a 2018 Massachusetts Rising Star by Super Lawyers.  Rising Star candidates are limited to no more than 2.5% of lawyers in Massachusetts and go through a nomination, peer review, and independent research process.

As described by Super Lawyers on their website:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

I’m very proud and grateful for this recognition.

Coincidentally, this recognition occurred right around the time that I celebrated my fifth year in solo practice.  What a ride it has been!  While it is a real honor to be included with Super Lawyers, I’m even prouder of the many successes I’ve had in in my practice areas of real estate litigation.

If I can be of assistance to you with your legal problems, contact me.

Lessons from a Massachusetts Adverse Possession Case

Adverse Possession

The Massachusetts Appeals Court issued an important decision this week concerning adverse possession and easements by prescription.  The decision, Smaland Beach Association v. Genova, is included below.

This decision concerns beach access . . . a common source of these cases.  The case also involves many other areas of property law, but my blog post here will stick to the parts of the decision relevant to adverse possession.

Overview of Adverse Possession/Easement by Prescription 

Adverse possession is a legal claim that allows a party to acquire other property if it uses it without permission of the legal owner.  In Massachusetts, such use must occur continuously for twenty years.   Importantly, such a claim requires exclusive use, with no one else having similarly used the property.

A claim of easement by prescription is similar to adverse possession, but without the requirement of exclusive use.  A easement by prescription allows a party permanent use (as opposed to ownership) of property.  These claims are common for disputes involving water access and parking.

Smaland Beach has some important lessons for litigating these kinds of cases.

Lesson #1: Facts Matter

Adverse possession cases are highly, highly factual cases.  It is not uncommon for these disputes to get into the weeds (no pun intended!) of the disputed property and concern even the smallest portions of the disputed land.

In this case, the party opposing this claim attempted to argue that the claimant’s case should have not been decided by the jury, arguing they did not present sufficient evidence to make such a claim.  The Appeals Court rejected this argument, by recognizing that such claims are questions of fact, and often need to be resolved at trial.

This is an important lesson for one of these cases: assume the dispute will go to trial, and plan accordingly by making a detailed and consistent narrative of the requirements for one of these claims.

Lesson #2: Unexplained Use of Property Creates a Presumption of Adverse Use

Smaland Beach Association reaffirms a long standing presumption for adverse possession: longstanding unexplained use of property creates a presumption that such use is adverse (non-permissive).

This presumption is highly important for a successful claim.  Adverse use is a requirement for one of these claims, and this presumption helps a claimant make this required showing.  After doing so, the party opposing such a claim has the burden to overcome this presumption, and show that such use was allowed.

Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case

Finally, Smaland Beach Association is a reminder that, in an adverse possession case, any persons whose property may fall under such a claim must be part of the action.

This isn’t that unique to an adverse possession case; in any civil action, a failure to join a necessary party can be grounds for dismissing a lawsuit.  I suspect, however, that given the implications of adverse possession to property owners, this rule is even more strictly applied.

Conclusion

If you find yourself involved in a property dispute concerning adverse possession, contact me for a consultation.

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