Adverse Possession Defense

Earlier this month, I was successful in pursuing an adverse possession defense for one of my clients in Land Court. My client, who owned a commercial business with a parking lot, was sued by a nearby occupant, who claimed they had a permanent right to use my client’s parking area.

The Court agreed that the opposing party could not show the requirements for such a claim, and denied their request for a preliminary injunction. Had the other side won, my client would have had to open his parking lot for vehicular access, which would have put his business in jeopardy.

As I will discuss below, the claim in this case was actually for an easement by prescription, rather than adverse possession. However, because these causes of action are similar, and are both colloquially known as adverse possession, I’ll refer to the latter throughout this blog post.

Adverse Possession/Easement by Prescription

Adverse possession is a legal claim by which a trespasser can obtain full ownership of real property if they use it continuously for a period of twenty years or more. As I’ve discussed before, there are also several more requirements for such a claim, and a party pursuing such a matter is required to prove each of them.

Adverse possession claims often arise in boundary disputes, when a landowner discovers that the property they have been using is not part of their official boundary lines. If successful in such a case, the trespasser will obtain full ownership of the disputed property.

A claim for an easement by prescription is similar to adverse possession, but a claimant is not required to show exclusive use of the disputed property. Such claims are common for matters concerning access to property, such as a right to cross through another’s property to get to a waterfront or, as in this case, vehicular access.

Adverse Possession Defense

In an adverse possession claim, if any of the requirements “remain unproven or left in doubt”, the claim must fail. For this reason, a successful adverse possession defense attacks the viability of each element of the claim.

In this case, I focused heavily on the required twenty years of continuous, uninterrupted use that the opposing party needed to prove. The Court agreed that the opposing party failed to prove this element of their case because my client erected a barrier on his property, stopping the other party’s use of the property. Such an interruption was fatal to the other side’s claim.

Such a defense often requires some “detective work.” In this case, I needed to track down the prior contractor who erected this barrier and get him to sign an affidavit, as well as collect supporting photos and documents from others involved in this matter. The old saying, the “devil is in the details”, is spot on for these claims!

Final Thoughts

If you are involved in an adverse possession or easement by prescription, a proper defense is critical for protecting your property. Contact me for a consultation to learn what must be done in one of these matters.

Settling a Partition Case in Massachusetts

I was recently successful in settling a partition case for several of my clients, who co-owned a vacation property with several other family members. My clients wanted the home sold and the other family members did not. I was retained to file a partition case and have the court order a property sale. I negotiated a settlement that saved my clients significant time and money.

What is Partition?

Real estate can (and often is) owned by multiple owners. If one owner wants to sell the property, and the other owners are not agreeable to a sale, any owner may file for partition. Such cases are commonly brought in Land Court.

An important part of the partition process is the rule that any property owner has an absolute right to seek partition. This means that, if one owner wants out, the property will eventually need to be sold.

Settling a Partition Case: What to Know

For this reason, the best way to succeed in a partition case is to avoid one in the first place. Such a case, inevitably, will result in court costs and attorney fees which can be avoided if the parties work the matter out on their own.

To do this, it is critical to know the numbers:

  • How much is owed on the mortgage loan?
  • How much is the property worth?
  • How much did each party contribute towards the property?

Knowing these numbers will go a long way towards negotiating a favorable resolution for such a case.

Settling a Partition Case: How It is Done

Resolving a partition case is typically done in one of two ways. First, the parties can simply agree to sell the property and split the proceeds, based on what each party is entitled to. It is often a good idea to hire an experienced, credible real estate broker for such a sale, who will help get the best price possible for the property.

The other option is for one party to buy out the other owner’s share of the property. This option requires the parties to agree on the appropriate property valuation timeframe for this to be done.

In the case that I settled, my clients and the opposing party chose the second option and worked out a sale of the home on their own terms. This saved everyone significant money and brought the matter to an amicable resolution.

Final Thoughts

Resolving a partition case is almost always better than litigating one of these matters in court. If you need assistance with such a case, contact me for a consultation.

Zoning and Anti-SLAPP

foreclosure appeal

The Appeals Court issued an important decision this week on the interplay between zoning and the Massachusetts Anti-SLAPP law. The full decision, Haverhill Stem LLC v. Jennings, is below.

What is Anti-SLAPP?

As I’ve written before, Massachusetts (like many other states) has a law that prohibits “SLAPP” lawsuits, an acronym for “Strategic Lawsuit Against Public Participation.” Such lawsuits aim to punish one’s right to petition the government, such as pursuing zoning relief.

Massachusetts’s anti-SLAPP law allows a party to file a special motion to dismiss such a lawsuit. A successful motion entitles the moving party to costs and reasonable attorney fees, making it a powerful weapon for attacking baseless lawsuits.

Anti-SLAPP, however, is limited to a narrow type of lawsuit: one that is solely based upon petitioning activity. If the opposing party can show that their lawsuit had a basis other than punishing the other party for petitioning activity, anti-SLAPP won’t apply.

Zoning and Anti-SLAPP

Zoning matters often implicate anti-SLAPP matters. The reason for this, in my opinion, is that zoning appeals are sometimes brought for nefarious purposes, such as stalling a development or attempting to punish another party. In certain limited cases, anti-SLAPP may apply to zoning disputes.

Haverhill Stem LLC concerned a zoning request for a marijuana dispensary in Haverhill. Another party objected to this project and demanded compensation to drop their opposition to the dispensary. Such demands escalated with numerous verbal and written threats.

Eventually, the party opposing the marijuana dispensary brought a lawsuit against this project in Land Court, seeking to invalidate the recreational marijuana zoning bylaw on several grounds.

Shortly after, the developer sued the opponent of the project under a variety of claims, including Chapter 93A and defamation. The opponent sought dismissal under anti-SLAPP, arguing that the lawsuit was punishment for its opposition to the dispensary. The trial court denied this motion, and the opponent appealed.

Haverhill Stem LLC upheld the denial of the anti-SLAPP motion, reasoning that the lawsuit was not based solely on petitioning activity. In other words, the lawsuit wasn’t simply filed to punish the other side for opposing the dispensary. Rather, the developer had a basis for the lawsuit on grounds of coercion and extortion.

Practical Implications

This case affirms a central requirement of anti-SLAPP: the protections of this law apply only against a lawsuit solely based on petitioning activity. In other words, if one can show they have an otherwise legitimate purpose for legal action, anti-SLAPP likely will not apply.

Legal actions, of course, are often pursued for reasons other than the relief sought in them. This case, however, is clear that there is a high bar for implicating anti-SLAPP.

Anti-SLAPP, however, is great protection against frivolous lawsuits under the appropriate circumstances. The key, however, is to make a compelling case in the limited situations where it can apply.

Conclusion

If you need assistance with zoning and anti-SLAPP, contact me for a consultation.

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Restrictive Covenants: What’s Allowed?

Restrictive covenants are private restrictions on land use. The Massachusetts Land Court has introduced a proposed procedure (“standing order”) for addressing restrictive covenants which are void and not enforceable under the law.

Restrictive Covenants

Restrictive covenants have existed since the start of basic property law in early Anglo-American law. Such covenants allow for the use of restrictions on property. There is an infinite number of uses for restrictive covenants, but common ones include limitations on what can be built on property and the protection of open space and scenic views.

The law, however, isn’t crazy about restrictive covenants. There is a general concern about restricting someone’s right to use their property, and, for that reason, there are restrictions in place on the use of restrictive covenants. Most notable is a thirty-year deadline for the limitation of these restrictions.

Unfortunately, restrictive covenants have a dark history of being used for segregation and other racial discrimination. For that reason, Massachusetts explicitly bans the use of covenants for such purpose:

A provision in an instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, color, religion, national origin or sex shall be void. Any condition, restriction or prohibition, including a right of entry or a possibility of reverter, which directly or indirectly limits the use for occupancy of real property on the basis of race, color, religion, national origin or sex shall be void, excepting a limitation on the basis of religion on the use of real property held by a religious or denominational institution or organization or by an organization operated for charitable or educational purposes which is operated, supervised or controlled by or in connection with a religious organization.

How to Deal With a Void Restrictive Covenant

The proposed Land Court order offers a procedure for those affected by such covenants, to obtain a court order (“declaratory judgment”) making it clear that such restrictions have no legal effect. A claimant would not need to pay a legal fee for filing such a case. The order, moreover, provides that the court will order that subsequent land records include a notation that the restriction is void.

While this proposed order clarifies the process for addressing improper restrictive covenants, such relief is already available to anyone affected by one of these covenants. A request for a declaratory judgment or quiet title is an option for any party seeking to clarify one’s rights under the law. This proposed order, nonetheless, is a good step in helping to resolve such matters.

Final Thoughts

If you need assistance with a restrictive covenant, contact me for a consultation.

Encroachment of Property in Massachusetts

Encroachment of property occurs when a structure is on someone else’s land. In Massachusetts, the law allows a property owner to take court action to have such a structure removed.

Encroachment of Property: What Can Be Done?

Massachusetts law allows a property owner to file a civil lawsuit for encroachment of property. Per the law, a property owner is generally allowed to compel the removal of a structure significantly encroaching their property. Such an action would generally be pursued in Superior Court or Land Court.

To pursue such a case, a property owner would, of course, have to show they own the respective property that they claim is being encroached. This generally requires the property owner to have a professional survey or plot plan showing the boundary lines and location of the encroaching structure. A property owner may also be able to show property ownership through a successful claim of adverse possession.

Is the Encroachment Trivial?

Not all encroachments, however, will allow a mandatory removal of a structure. A court will not permit such relief when the encroachment is de minimis (“minor”). For example, a prior case found an encroachment to be de minimis for a building located on another’s property by only one-quarter of an inch.

Determining this will come done to the specific facts of each case, and will require a claimant to make a compelling reason why such a removal should be permitted.

Practical Implications

As with all legal matters, it is best to see if such disputes can be resolved without court intervention. Negotiation and compromise can often save all parties enormous time and legal expenses. If you need assistance with such a matter, contact me for a consultation.

Massachusetts Land Records

The Massachusetts land records consist of all documents related to the ownership of real property in the Commonwealth of Massachusetts. Compared to many other states, the Massachusetts land records are online, which makes searching them easy.

I recommend that every property owner check their land records once a year, to keep an eye on filings that are not common and should be addressed right away.

Searching the Land Records

The Massachusetts land records are available online at masslandrecords.com. Each county keeps records in an individual registry of deeds. The process of filing a document in the land records is known as recording, which is done at each registry.

Massachusetts uses two types of land recording systems: (1) recorded and (2) registered land.

Recorded land is the most common system, with recorded documents generally organized by book and page numbers. This is a relic of the past when such records were kept in individual books. Even though records are now all digitally, the old book/page system is still used.

Registered land is a recording system that Land Court oversees. Documents are organized by certificates of title, which group similar property documents together. Compared to recorded land, the requirements for recording documents in registered land are much stricter.

Common Documents in the Land Records

The common documents found in the Massachusetts land records are those associated with the sale of a property. Deeds, mortgages, mortgage assignments, and mortgage discharges are regularly found in the land records.

Other normal documents in the land records are zoning decisions, for an approved variance or special permit, and declarations of homestead, which provide certain protections for owner-occupied property.

Absent anything that looks unusual, property owners should not be concerned about seeing any of these documents in the land records.

Problematic Documents in the Land Records

The recording of certain documents in the land records can be a sign of a legal matter that needs to be addressed right away.

If a homeowner owes money to someone else, a lien may be recorded against their property. This is a debt that will have to be satisfied before the property is sold. Property owners should be particularly mindful of property tax liens, which come with strict penalties if not timely resolved.

Any documents concerning a Servicemembers Civil Relief Act case is generally a sign that a foreclosure sale is forthcoming. If a homeowner sees such a document, they should speak to their lender immediately to see what can be done to avoid foreclosure.

Some court cases, such as partition, require notice to be filed in the land records. If a homeowner sees any such legal notices, they should speak to a lawyer immediately to figure out what is going on.

Final Thoughts

If you need assistance with any matter concerning the land records, contact me for a consultation.

Zoning Judicial Review in Massachusetts

The Appeals Court issued an interesting decision earlier this year concerning some important topics on zoning judicial review in Massachusetts. This decision discusses some of the relevant matters that arise when a zoning decision goes before a court. A copy of the decision, Mancuso v. ZBA of Marblehead, is below.

Zoning Judicial Review 101

In Massachusetts, zoning decisions are primarily made at the local level by various town/city boards and commissions. The most common of these is a zoning board of appeals (“ZBA”) and a planning board.

Zoning boards have wide discretion in the decisions they make. This authority, however, is not unlimited, and such boards can (and many times do) issue decisions that exceed their authority. This is common for variances, where the requirements for such a zoning exemption are detailed and rigorous.

A legal challenge to a zoning decision may be pursued through a court case, where the court is asked to determine the validity of the zoning decision. Such cases are often filed in Land Court or Superior Court.

This Appeals Court decision looked at two important topics for zoning judicial review: (1) a court’s ability to issue zoning board remands and (2) the admissibility of board members’ testimony in such cases.

Zoning Board Remands

When reviewing a zoning decision, a court is not limited to simply upholding or denying the decision. Rather, a court also has the ability to issue a remand to the local zoning board. Such a remand orders the local zoning board to review their prior decision and correct any mistakes in their initial decision.

This is common when the local zoning board failed to consider a relevant factor under the law or did not issue an adequate written decision. After remand, the local zoning board must review the matter again, per the court’s instructions on what mistake or error it must correct.

As noted by the Appeals Court:

Remanding serves the goal of resolving controversies by “giving the board an opportunity to make further findings of fact or to state more fully the reasons for its decision, or . . . to reconsider an application in the light of stated principles different from those on which the board [had] thus far proceeded.” (citation omitted)

This Appeals Court decision underscores that courts have wide latitude in issuing remands for zoning cases. This is an important consideration when deciding to pursue a zoning appeal.

Testimony of Board Members

The Appeals Court also reaffirmed an important zoning judicial review principle: zoning board members’ testimony is generally not permitted in a zoning trial. While a court will certainly consider any written decisions from these local boards, each member’s individual testimony is usually not relevant evidence.

Final Thoughts

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

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Title Issues with Foreclosed Properties

Title issues with foreclosed properties often arise when a dispute comes up over a property’s lawful ownership. Most often, these involve a claim that the underlining foreclosure was not performed lawfully. Massachusetts law is clear that the failure to “strictly comply” with the applicable foreclosure requirements makes a foreclosure void.

As someone who has worked on foreclosure issues both for borrowers and third-party buyers of these properties, I’ve seen these problems from both sides.

Several options exist for resolving title issues with foreclosed properties.

Release from the Prior Property Owner

One of the easiest ways to resolve a faulty foreclosure problem is to get a release from the proper property owner.

If the underlining foreclosure is void, the prior owner still has ownership of the property. Often, if they are willing to deed this ownership to the new owner, any issues with the void foreclosure issue can be resolved.

This, of course, requires the consent of the prior owner (and the ability to locate him or her).

Court Action

If the prior owner cannot be located or is unwilling to resolve a void foreclosure, court action may exist to fix the problem. An action for quiet title or a declaratory judgment may be effective for one of these matters under the right circumstances.

New Foreclosure Sale

In neither option above is a possibility, a new foreclosure sale can occur.

Such a sale does not necessarily need to be performed by the original lender or mortgagee. In certain circumstances, a third-party buyer of a foreclosed property can assume the mortgage and promissory note and do a new foreclosure sale themselves.

Final Thoughts

Needless to say, anytime a problem arises in the foreclosure process, you should speak to an experienced attorney immediately. If you need help with such a matter, contact me for a consultation.

Specific Performance for Property: Three Things to Know

Specific performance for property is a legal remedy available for many real estate disputes. Here, I’ll discuss three things to know about this area of law.

Specific Performance Requires a Party to Fulfill A Contract Duty

A contract is a legally binding, enforceable agreement. What happens when someone breaches a contract? If the other party pursues the matter in court, they can recover damages from the other side. Most of the time, these damages are money. This is the preferred way that courts like to resolve these matters, by simply issuing a judgment for money against the offending party.

Money, however, won’t always solve the problem. Sometimes in a contract dispute, the goal is to get what was actually bargained for. This most commonly occurs with property. Most often, the buyer doesn’t just want money in a contract dispute; the buyer wants the actual sale of the home to occur.

In such a matter, a party can request specific performance. If successful, the court will order the breaching party to sell the property.

A Judge, and Not A Jury, Determines Whether Specific Performance Is Allowed

In law, some matters are determined by a jury, and others, by a judge. Whether or not someone is entitled to specific performance for property is a decision that a judge alone decides.

While specific performance is commonly granted for real estate contract disputes, it is not a strict requirement. A judge does have discretion in granting such relief and may not allow it if the other party acted in bad faith.

Contracts For Real Estate Have Many Forms

Massachusetts, like most states, requires most contracts for real estate to be in writing.

Most of us think of legal contracts as lengthy, typed agreements that lawyers negotiate and draft. However, this isn’t the only way to draft contracts. Courts have found contracts to be created through text messages, email, and other written correspondence.

For this reason, a claim for specific performance for property is not lost simply because a contract is not in a traditional written form. For this reason, those involved in a contract dispute involving property should speak to an experienced attorney to determine if specific performance is a viable option.

How to Divide Property Between Family

The topic of how to divide property between family often comes up when family members own property together, and one member wants out. This most commonly occurs, in my experience, through the inheritance of property among siblings, after a parent dies.

The rule of thumb is that, in nearly every case, if an owner of property wants out, they are entitled to force a sale of the property. For this reason, when such a scenario comes up, it is best for those involved to try and resolve it on their own.

How to Divide Property Between Family: Working Out a Buy Out Or Sale Agreement

When the topic of dividing property comes up, the first thing to be done is try and see if the matter can be worked out amicably, by joint agreement.

When one co-owner of property wants out, there are generally two options available. First, the parties can negotiate a buy out of the owner’s share, where the other owners pay them for their share of the property. This is generally required when one of the co-owners wishes to keep the property, and the others do not.

If a buy out cannot be worked out, the other option is to simply agree to sell the property.

How to Divide Property Between Family: Partition

If an agreement among the property owners cannot be reach, any owner may file a partition case, where the court orders a sale of the property.

A partition case may be filed in either Land Court or Probate and Family Court. The process can be expensive, as the parties will generally need to pay attorney fees and court expenses. The filing of one of these cases, however, can be effective in moving one of these matters towards a final resolution.

Final Thoughts

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