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.

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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Who Can Challenge a Zoning Decision in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision this week clarifying who can challenge a zoning decision, and the role of a trial judge in making this inquiry.  This decision, Talmo v. Zoning Board of Appeals of Framingham, is included below.

Background 

This case started with a Framingham resident applying for a building permit to construct a guest room addition to their home.  The City granted the permit, and one of abutters of the property (who lived nearby) sought a zoning enforcement action, essentially arguing that this guest room addition violated the City’s zoning ordinances, and that the City should order this project to stop.  The City of Framingham’s Zoning Board of Appeal initially agreed, and stopped the project.

The party wishing to construct this addition changed their plans for this project, and applied again for a building permit, which the City allowed.  The abutter sought a similar zoning enforcement action, which the zoning appeals board denied.  This abutter then appealed this zoning decision to Land Court.

Who Can Challenge a Zoning Decision? 

This case concerns an important question for Massachusetts zoning law: who can challenge a zoning decision?

During the trial for this case, the Land Court observed that this abutter was not in direct proximity to the guest room addition, and had not otherwise identified any real harm that he would suffer from this addition.  The Land Court, on its own, subsequently dismissed this case, holding that this abutter lacked standing to pursue this appeal.  Simply put, the abutter had “no dog in the fight” because he would not be affected by the guest room addition.

The Appeals Court agreed with the Land Court’s decision.  Under Massachusetts law, only a “person aggrieved” by a zoning matter has a right to challenge a zoning decision.  The Appeals Court agreed that this abutter did not show how he would be harmed by this zoning decision, and therefore had no grounds for pursuing this case.

An important part of this case was how the Land Court reached this decision.  Here, the Land Court made this finding entirely on its own: the opposing party never pursued the issue of standing as a defense to this case.  The Appeals Court agreed that in a zoning matter, a trial court could decide on its own that a party lacked standing to pursue such a case.  In other words, even if neither party raises this issue, it can still become a determining factor if the trial court is not convinced that a party has adequate standing.

Practical Implications

This decision reaffirms that, to challenge a zoning decision, one must have “skin in the game.”  Failure to have standing in such a matter can lead to the immediate dismissal of such a case.

Talmo recognizes that a trial court is well within its right to inquire about a party’s aggrieved status on its own . . . even if the opposing side never raises it.  The Appeals Court emphasized that the trial court should give fair notice to a party if it is concerned about one’s standing.  Nonetheless, standing is a mandatory threshold that one must carefully consider when pursuing a zoning appeal.

Conclusion

Talmo v. Zoning Board of Appeals of Framingham is an example of the importance of having an experienced real estate litigation attorney on your side for a zoning appeal.  If you find yourself in need of such help, contact me for a consultation.

Talmo v. BOA Framingham

Massachusetts Tree Law: When Can a Property Owner Be Liable For a Tree on Their Land?

Massachusetts Tree Law

The Massachusetts Supreme Judicial Court issued an important decision last week on Massachusetts tree law.  The decision, Shiel v. Rowell (included below), discusses a property owner’s liability for a tree on their property.

Background

The facts of this case are fairly straightforward.  The parties in this case were two neighbors, with one bringing a lawsuit against the other for damage caused by a tree from the other’s property.  This tree caused algae buildup on the other’s roof, from the branches that were hanging over the home.  The neighbor who filed this lawsuit sought money for these damages, and an injunction (court order) that the other neighbor cut back the tree that was causing this damage.

Overview of Massachusetts Tree Law

This case presented a simple, but important, question for the court: when can a property owner be liable for a tree on their land?

The Court reaffirmed a long standing rule in Massachusetts that a landowner may not hold a neighbor liable for damage caused by a neighbor’s healthy tree.  Here, the algae damage to the home resulted from branches hanging over the home . . . something that commonly occurs with trees.  As this was a “healthy” tree, it was not up to the owner of the tree to deal with this problem.  Rather, the neighbor who owned the home underneath these tree branches was responsible for addressing this problem.

The Court affirmed that a property owner has a right to cut off branches, roots, and other parts of a tree that interferes with one’s property.  If a property owner fails to do so, they cannot blame the tree owner for the natural damage caused by the tree.

The issue of whether a tree is “healthy” was a critical factor for the outcome of this decision.  If a tree is unhealthy, this rule of non-liability would seemingly not apply.  For example, if a dead tree breaks apart and falls onto a neighbor’s home, the owner of the tree will not automatically avoid liability for such damage.   Likely, in such a case, the owner will have liability for any resulting damage.

Practical Implications

As the Court stated in this decision, a practical lesson of this decision is the importance of maintaining one’s property.  A homeowner cannot expect to obtain relief against a neighbor if they fail to address the natural problems that arise from encroaching trees.

A word of caution about cutting down portions of a tree on your property.  While it is permissible to cut back portions of an intruding tree, Massachusetts law imposes steep penalties for willfully cutting down or destroying trees on another’s land.  With this in mind, one should use extra caution in dealing with an encroaching tree.

Conclusion 

If you find yourself in need of assistance with a matter involving Massachusetts tree law, contact me for a consultation.

Shiel v. Rowell (Tree Law)

Understanding a Real Estate Purchase Agreement

A real estate purchase agreement is an essential part of buying or selling property.  Understanding the importance of these agreements is essential for avoiding potential problems later on in the sale process.

Selling Property Generally Requires A Written Agreement 

Massachusetts, like most states, has a statue of frauds, a law requiring that certain types of agreements be in writing to be enforceable, including the sale of property.  With few, limited exceptions, an oral agreement will not suffice when real estate is involved.

Importantly, the type of writing allowed for such agreements is broader than a traditional written contract.  A recent Land Court decision found that a binding agreement for the sale of property was created through text messages, and similar decisions have held that emails are also sufficient for satisfying the statute of frauds.

Common Types of Real Estate Purchase Agreements

For the sale of residential property, there are two common types of real estate purchase agreements: an offer to purchase real estate and a purchase and sale agreement.

An offer to purchase real estate is just that: a written offer for the sale of property.  These agreements are generally one or two pages and contain the “bare bones” terms of the sale.

When the parties are ready to move forward with the sale, a purchase and sale agreement is generally negotiated and signed.  This agreement contains more information on the sale of the property, which generally comes after the parties have had more time to seek financing and discuss the specific details of the sale.

The most important thing to remember about real estate purchase agreements is that such agreements are generally binding contracts.  If signed, a party is generally committed to selling or buying the property.  There can be defenses to such agreements, but a seller or buyer should exercise extreme care in signing one of these agreements.

Drafting Real Estate Purchase Agreements

If you are involved in buying or selling real estate, hire a lawyer to assist you in drafting a real estate purchase agreement.  An experienced attorney will know what to include in these agreements and how to include contingency clauses that excuse a party from performance if they are not able to buy or sell the property.

Enforcing or Defending a Real Estate Purchase Agreement 

If you need to enforce or defend a real estate purchase agreement, you need an experienced real estate litigation attorney on your side.  An attorney will help you in determining the right cause of action for your case and know the ways that the legal system can protect your interest in the property while the legal case is ongoing.

If you need help with one of these cases, contact me for a consultation.

Legal Tips for Buying Your First Home

Buying your first home can  be both an exciting and stressful experience.  While home ownership is, to many, the height of financial success, the process of purchasing a home has many traps for the unwary.

As a lawyer involved in real estate litigation, my cases generally come to me when things go wrong.  Here, I want to share some legal tips for buying your first home that can help avoid these pitfalls and make the experience as easy as possible.

Review Your Finances With a Financial Expert Prior to Purchasing a Home

A large portion of my practice consists of foreclosure defense.  While I have helped many, many homeowners save their homes from foreclosure, I always maintain that the best way to beat foreclosure is to avoid it in the first place.  With this in mind, a potential home buyer should always speak with a financial expert prior to making an offer on a home.  An expert can help you identify a home that meets your budget and offer advice for covering the many expenses that come with home ownership.  Buying your first home is an enormous financial investment, one that a financial expert can be a great help with.

Get Everything in Writing

Enforcing any oral promise is tough to do, for the simple reason that it is tough to prove one’s word against someone else’s.  In real estate, oral promises are even more problematic due to the statute of frauds, a legal requirement that most contracts for real estate be in writing.  Without such a writing, it can be difficult (and many times, impossible) to enforce an oral promise.  Make sure that all matters concerning the purchase of your  first home are in writing.

Give Careful Consideration to the Demands of Becoming a Landlord

When looking to purchase a home, many potential buyers are tempted to purchase homes that include a rental unit, to offset the expenses of home ownership.  Rental property can be an excellent investment, but you need to give careful consideration to the demands of becoming a landlord prior to purchasing such property.

Massachusetts has many, many requirements for landlords, and the penalties for not following these laws can be disastrous.  Moreover, as a landlord, you’ll be responsible for maintaining the property and addressing the problems that will come up over time.  Be prepared for these responsibilities before making this commitment.

Be Wary of Buying a Home With a Non-Married Partner

For a married couple, the process of addressing “who gets the home” during a divorce is difficult enough on its own.  For home owners who are not married, the process can be even more complicated.  If the non-married home owners split up, and are unable to agree on what to do with the home, a partition case may become necessary: a legal proceeding where the court determines who gets what, which can be long and expensive.

With this in mind, be careful about making the commitment of purchasing a home with someone who is not your “permanent” significant other.  If the relationship goes south, the process of dealing with the home can be a real hassle to resolve.

Hire a Lawyer for the Real Estate Closing

When closing on a home, hire a lawyer.  Buying your first home can be a complicated process, and having an experienced attorney on your side can make the process much easier.  It may be tempting to try and do this on your own, but resist this temptation!  A real estate attorney will review the necessary paperwork for your purchase and ensure that nothing is missing or incorrect.  The small fee for this legal service will go a long way in avoiding problems down the road.

Conclusion

Here’s hoping the purchase of your first home is a stress free and rewarding experience.  In the event that a legal problem does arise, contact me for a consultation.  The benefits of having an experienced attorney on your side can make all the difference in getting you the help you need.

How to Prevent Adverse Possession in Massachusetts

Adverse possession is an area of law that every Massachusetts property owner needs to be aware of.  These types of claim allows a party using another person’s property to acquire it through continuous use.  If you suspect your property may be used by someone else, it is important to know how to prevent adverse possession.

Overview of Adverse Possession

Adverse possession allows a party occupying another’s property to acquire it as their own.  Under such a claim, the continuous use of such property for twenty years allows a user to make it their own.  This doctrine of law has serious consequences for owners who neglect their property: under the right circumstances, a so-called “trespasser” can become a property owner.  

Know Your Property

Adverse possession commonly occurs in a scenario where property owners do not know “who owns what.”  Often, an adverse possession claim can arise when a property owner sincerely believes that the driveway, parking lot, or water access is their own, and uses it that way for the required twenty-year period.

For this reason, it is important to know your property, and learn your property boundaries through a formal land survey.  Doing so will allow a property owner to know if someone else is on their land.

Consider Giving the Non-Owner Permission to Use the Subject Property

A non-occupant’s use of property is not always contentious.  For example, a homeowner may learn that their neighbor’s shed encroaches several feet onto their property, on a portion of their backyard that is rarely used.  The homeowner may not care that the neighbor is using this land but, understandably, does not want to lose it from a potential adverse possession claim.  What can be done to prevent adverse possession?

In such a case, the homeowner may consider simply giving the non-occupant permission to use the property.  A central requirement of adverse possession is that the use must be non-permissive.  If the homeowner expressly gives permission to use the property, adverse possession cannot occur.

While this solution to adverse possession is fairly straightforward, it is still worth speaking to an attorney for advice on how to do this properly, so as to not lose the right to retain this property if it is ever needed again.

Court Action for Trespass or Injunctive Relief

If you are not able to resolve the matter amicably, court action may become necessary.  A party who feels someone else is using their property without permission can bring an action for trespass and seek injunctive relief, where a court formally orders a party to stay off a property.

Conclusion

If you find yourself in such a scenario, it is worth speaking to an attorney on how to prevent adverse possession.  I have helped other homeowners with similar claims and can provide the guidance necessary to resolve these tricky matters.

What is a Lis Pendens?

An effective tool in pursuing a real estate dispute is a lis pendens.  A request for a lis pendens often comes up in property lawsuits and can be useful for protecting one’s interest in real estate while a lawsuit is ongoing.

What is a Lis Pendens?

A lis pendens, simply put, is a formal notice of a pending legal action.  Per the law, a lis pendens is allowed for a lawsuit that “affects the title to real property or the use and occupation thereof or the buildings thereon . . .”  A lis pendens must be signed by a judge, after finding that the underlining lawsuit is one that meets this standard.  After a judge approves a lis pendens, it may be recorded in the appropriate registry of deeds as part of the land records.

Recording a lis pendens, on its own, will not stop the buying or selling of property.  The practical effect of a lis pendens, however, is to preserve the status quo while a lawsuit is ongoing.  Few people will buy real estate knowing that a lawsuit affecting the subject property remains ongoing.

Requirements for a Lis Pendens

Compared to a preliminary injunction (another legal tool for preserving the status quo during a lawsuit), a lis pendens is relatively easy to obtain.  The lawsuit must be one that affects title to real property, and must be verified by the party seeking the lis pendens.  This means that the party has affirmed, under the pains and penalties of perjury, that the facts of the lawsuit are correct.

Prior to recording a lis pendens, the law requires the party to prepare an affidavit stating that notice of the allowance of the lis pendens has been provided to the other parties in the lawsuit by certified mail.

In Superior Court, a lis pendens generally requires a hearing before the Court with proper notice to the other side.  While not in the formal rules for other trial courts in Massachusetts, this is the general practice for most lis pendens requests: the court will likely only consider this relief upon notice and hearing to the opposing party.

A party is permitted to seek a lis pendens on an emergency basis, by going to court first and not giving the opposing side notice (known as an”ex parte” action).  However, a party needs to show a real emergency for doing so.  If there is time for the court to hold a hearing and hear from the opposing side, the court will likely require a hearing.

Conclusion

A lis pendens is an effective part of litigating real estate disputes.  An experienced real estate litigation attorney can make a real difference in obtaining this relief and getting you the results you need.  If you find yourself in a dispute that may justify a lis pendens, contact me for a consultation.

Sherwin Law Firm Succeeds in Case of Easement by Prescription

I’m pleased to announce that I prevailed in a case last week involving an easement by prescription for residential property.  This case involved many interesting areas of Massachusetts property law.

Overview of the Case

My clients were homeowners who, for the past thirty years, had used a nearby paved lot by their home to park their cars.  Along with parking their cars, they regularly maintained the lot and performed improvements on the walls that surrounded the property.

Several years ago, someone else purchased this parking lot and demanded that my clients pay rent to use it.  My clients, who spent years using the lot as their own, were understandably upset about this turn of events and sought my legal advice on what could be done about this problem.

My Approach

I filed a lawsuit against the new owner of the property seeking a declaratory judgment that my clients were entitled to permanent use of the parking lot.  A declaratory judgment is a court order to determine one’s rights under the law.  A court order like this is needed in a case where the goal of the lawsuit is not money, but rather, a legal declaration from a court.

In this lawsuit, I asked for an easement by prescription for my clients.  An easement by prescription is a permanent right to use someone else’s land.  An easement by prescription requires the following:

  • The use of the property must be adverse for at least twenty years.  This  means that the person seeking an easement by prescription must show that the owner of the subject property never gave them permission to use the property.
  • The use of the property must constitute actual use.  This means that the person using the property used it in a way that property of that type is commonly used.
  • The use of the property must be open and notorious.  Simply put, the use of the property must put the actual owner on fair notice that someone else is using his or her property.

An easement by prescription is similar to adverse possession, which is a legal claim for permanent ownership of property that is used for twenty years.  The critical difference is that a claim of adverse possession requires a party to prove that their use of the property was exclusive, and  that the record owner of the property was “cut off” from the property.

An easement by prescription does not require proof of exclusive use.  Easements by prescription are commonly used for cases involving the right to use a road for access to land and for beach and waterfront rights (common in Cape Cod and other coastal areas of Massachusetts).

Outcome 

As with all claims of adverse possession and easements by prescription, the “devil is in the details.”  Proving one of these claims requires an understanding of how the subject property was used for the past twenty years, which often requires going through extensive land records, photographs, and other evidence related to the property’s use.  A trial for one of these cases requires that this evidence be presented to the Court in a way that coherently explains the required elements above.

In the end, the work on this case was worth it: following a trial, the Court agreed with our claim, and granted my clients a permanent easement for parking.

Lessons for Property Owners In Similar Cases 

Claims for adverse possession and easement by prescription may, at first blush, appear to be trivial, with neighbors fighting over small parcels of property.   In actuality, these disputes concern incredibly important matters.  Here, parking access was essential to my clients, who lived in a city that had limited off-street parking, making this easement by prescription a huge benefit to my clients’ home.

If you find yourself in a dispute involving the use of property, contact me for a consultation.  A lesson of this case is that long standing use of property, under the right conditions, can allow for a permanent right to access or ownership .  An experienced real estate attorney can help you decide if one of these claims is worth pursuing.

5B Affidavits

Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property.  G.L. 183, § 5B provides for the following:

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property.  5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property.  I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records.  A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.

5B affidavits, importantly, must be certified by an attorney.  The law does not allow a non-attorney to record one of these affidavits on their own.

While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used.  Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit.  A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to.  An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.

If you find yourself in a real estate dispute, contact me for a consultation.