Quiet Title in Massachusetts

Massachusetts zoning

Quiet title is a legal action used to resolved real estate disputes. This action asks a court to issue an order resolving a property issue. This can be highly effective in determining one’s rights in property.

Overview of Quiet Title

Quiet title is a broad cause of action, and can conceivably be used for any type of real estate dispute where the rights of property are at issue.

I like to think of quiet title as being a declaratory judgment action for property, where a court is being asked to resolve an actual controversy.

Quiet title, importantly, gives a claimant a lot of leeway in who an action can be brought against, including “the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth.” This is helpful for disputes where the potential defendants are unknown or not entirely certain.

Where to File

Quiet title actions are most often filed in Superior Court and Land Court. Deciding which court to use is a critical decision, which an experienced attorney can help with.

In my experience, Land Court is often the best forum for these matters. Land Court judges have a solid background in real estate matters, and expertise in addressing such cases in a prompt and effective manner.

Other Options for Resolving Property Disputes

When bringing a lawsuit to resolve a property dispute, it is important to similarly consider and include any other causes of action for resolving property disputes.

For boundary disputes, claims of adverse possession and easement by prescription often arise and come into play. Try title, which forces an opposing party to raise all of their claims to a property in a single action, is also a claim that should be considered in such matters.

Property disputes involving deeds and mortgages often implicate matters concerning reformations and discharges.

Final Thoughts

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

Appealing a Zoning Board Decision

Appealing a zoning board decision is an option available for anyone who has received an unfavorable zoning decision, or who is harmed by someone else’s zoning matter.

This blog post does not cover zoning matters in the City of Boston. Zoning in Boston falls under a different set of rules and is slightly different. I’ll write about Boston zoning in a future blog post.

Who Can Appeal?

A “person aggrieved” by a decision from a zoning board is entitled to appeal such a decision. This requirement is known as standing: one must have a real interest in the outcome of the zoning board to pursue an appeal.

This is a critical point about appealing a zoning board decision. Not just anyone can pursue such a matter; one needs to show aggrievement. Failure to do so will be fatal to a zoning appeal.

What is the Deadline for Appealing a Zoning Board Decision?

Zoning appeals come with incredibly tight deadlines. Most often, such a case must be filed within twenty days after the zoning decision is filed with the city or town clerk.

This is a “hard and fast” deadline: there are few, if any, exceptions allowed for the late filing of such an appeal.

Zoning appeals are generally filed in either Superior Court or Land Court, with advantages and disadvantages for pursuing such a case in each court.

Considerations for An Appeal

A major consideration for a zoning appeal is the likelihood of success in such a matter. The law gives zoning boards wide discretion in the decisions they make. However, such relief needs to have supporting basis in law and fact.

Variances, in particular, have detailed requirements to obtain, and a failure to meet each of these criteria can be grounds for a viable appeal.

Reviewing a zoning board decision with an experienced attorney is critical before making a decision to appeal.

Final Thoughts

I’ve helped many Massachusetts property owners pursue and defend zoning appeals. If you need assistance with such a matter, contact me for a consultation.

How to Prove Adverse Possession

Land Court issued an interesting decision last week on how to prove adverse possession and whether landscaping activities, alone, are enough to do so. This decision, as of now, is not available online.

What is Adverse Possession?

Use it, or lose it! That is a quick and dirty summary of adverse possession. This area of law allows a non-record owner of property to acquire another person’s property if they continuously use it for twenty years.

Proving adverse possession in Massachusetts requires a showing that the property’s use was open, adverse, actual, notorious, and exclusive for twenty years. Courts, importantly, require a solid showing of proof for each element, and will not allow a claim if any one of these factors are not proven.

What’s the purpose of adverse possession? The best explanation of adverse possession, in my opinion, is to preserve the status quo. If a non-owner of property has taken care of real property for an extended period of time and made it their own, adverse possession is meant to keeps things are they are. Adverse possession also provides a strong incentive for owners to take care of their property.

How to Prove Adverse Possession

Proving adverse possession is not always easy. In this Land Court decision, a claimant asked for adverse possession on the grounds that he had performed extensive landscaping of the disputed property for the past twenty years, including weekly mowing, seeding, and lawn maintenance activities.

Land Court ruled that such activities were not enough to show open and actual use. This follows a general trend that landscaping, alone, is not grounds for adverse possession; a claimant must also do some other improvement to the land, such as erecting a fence or doing significant landscaping cultivation.

The Court similarly held that the claimant had not shown exclusive use. In other words, there was not enough to show that the non-owner was trying to exclude others from the property, such as enclosing the property with a fence.

Practical Implications

Adverse possession cases need to be prepared carefully, with a strong case made for each element. Here, while I think Land Court got this decision correct, there are other cases that seem to go the other way in similar scenarios. This is one reason why these disputes are fact intensive and require enormous preparation.

I’ve help many property owners with such cases. If you need assistance with such a matter, contact me for a consultation.

5 Things to Know About Massachusetts Land Court

Massachusetts has a unique forum for handling real estate disputes: Land Court. Land Court is a specialty court which handles a wide array of property issues, including Servicemembers’ Cases, boundary disputes, and other real property matters. Those involved with a real estate issue should be familiar with this court’s unique features.

1. No Jury Trials

No jury trials are allowed in Land Court. If you file a case in this court, your matter gets decided solely by a judge. This, in my opinion, is a great feature of Land Court for certain cases, such as adverse possession, which are best suited for a judge to decide, and not a jury.

Another feature of Land Court are judges with expertise in Massachusetts property law. It is a safe bet that the judge you are appearing before has heard a case of this type before, and has a solid background on the applicable law.

2. Assigned Judges for Cases

In most Massachusetts state courts, judges sit in different sessions at different periods of time. It is not uncommon in Superior Court, for example, to have a case heard by multiple judges for the duration of the lawsuit.

In Land Court, a single judge is assigned to each case. A benefit of this is that the judge will have familiarity with the history of the case throughout the proceedings. This is a huge benefit for complex and detailed matters.

3. Early Case Management Conferences

Upon the filing of a case, the court schedules a case management conference. This is an opportunity to meet with the judge and opposing party and make a plan for the case. Many times, this initial hearing can help pave the way forward to resolving the dispute.

4. Servicemembers’ Cases

Servicemembers’ cases are typically brought in Land Court. These cases are to determine whether a party is in the active military service, which provides some protections against foreclosure and other legal proceedings.

Such proceedings are often confused with an actual foreclosure sale itself. These cases, however, are only a prerequisite to a foreclosure sale. Unless the homeowner is in the active military service, the homeowner generally does not have a defense to one of these matters. Nonetheless, a homeowner who receives one of these notices should be proactive about addressing the oncoming foreclosure against their home.

5. Jurisdiction Over Registered Land

Land Court has exclusive jurisdiction over registered land. Registered land is a unique form of public land record keeping that is certified by the state. Land records for registered land are generally organized by certificates of title on the public land registries.

Land Court certifies such land records, and authorizes whether changes may be allowed to the property’s title. If your case involves registered land, more often than not, a Land Court proceeding will be necessary.

Conclusion

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

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.