Quiet Title in Massachusetts

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.

Massachusetts’ Land Records: Five Things to Know

Massachusetts’ land records are an essential tool for any real estate matter, whether it be a real estate dispute or transaction (such as buying or selling a home).

Here, I’ll discuss five things to know about Massachusetts’ land records.

Free, Online Access

I’m from Vermont. While I would take a Vermont beer over a Massachusetts beer on any given day, I wouldn’t trade Massachusetts’ land records for anything. Vermont (like many other states) uses paper for all of their land records. If you want to search the land records, you need to visit the individual town or city.

In Massachusetts, our land records are online: www.masslandrecords.com. This is a tremendous resource for anyone involved in a Massachusetts real estate matter.

Although documents may be viewed online, the process of filing land records (known as “recording”) usually must be done at one of the physical registry locations. E-recording is allowed in some locations, but not all, and generally requires pre-registration.

Recorded v. Registered Land

Massachusetts uses two systems of land registration: recorded and registered land.

Recorded land is the most commonly used Massachusetts land records system. Documents are generally recorded individually, with references to other related documents, to make it easier to search.

Registered land is a land record system overseen by Land Court. The requirements for recording registered documents are more stringent than those for recorded land, and sometimes require approval from the court itself for any changes to be made. Recorded land is organized into “certificates of title”, which group together related land documents.

Common Documents to Find in Land Records

Common documents to find in the land records include deeds, mortgages, mortgage assignments, and homestead filings. All of these documents are associated with the buying and selling of property.

Court decisions can also be recorded in the land records. For example, if a homeowner prevails in a boundary dispute against a neighbor, the decision can and should be recorded so as to make it part of the chain of title, so future buyers of both properties become aware of the decision.

Problematic Documents to Find in Land Records

Some documents recorded in the land records can be problematic, and should be checked closely by a property owner. Judgments for money, where a court has ordered one party to pay another money, can be recorded in the land records as a lien on property. These generally must be satisfied prior to the sale of property. Liens can also arise from unpaid property and federal/state taxes.

The recording of a notice of a Servicemembers’ Case is often a prerequisite for the start of the foreclosure process. A homeowner who receives such a notice needs to act quickly to address the matter.

Affidavits to Clarify the Chain of Title

Massachusetts law allows the recording of an affidavit in the land records, for the “benefit and assistance in clarifying the chain of title.” Such an affidavit must have a certificate from an attorney.

These affidavits are helpful for explaining or clarifying real estate matters that are not otherwise apparent from other recorded documents.

Commonly known as “5B Affidavits”, these documents can be a great tool for resolving real estate disputes.

Conclusion

If you need assistance with a real estate matter, 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.

How to Settle Property Disputes

A recent story from Maine discusses the importance of how to settle property disputes and, most importantly, what to avoid. In this article, a dispute over property among neighbors got so bad that one of the neighbors cut the other’s garage in half!

Needless to say, this isn’t the best approach when addressing a boundary dispute.

Determine Who Owns What

The first step for settling a property dispute is to determine the exact property you own. The starting point for this is generally a survey or plot plan, done by a licensed surveyor who has reviewed the land records.

If you find that the disputed property is not within your record title, or the disputed property’s ownership is unknown, a claim for adverse possession may still be a possibility.

Attempt to Resolve the Matter Without Court Involvement

Property disputes can get expensive and complex . . . really quickly. With this in mind, it is worth trying to resolve the matter without court involvement.

That’s not to say this should be done without lawyer involvement. In many of the property disputes that I’ve handled, I have able been to prepare a demand letter that has successfully resolved the matter without a formal legal action. This option is almost always worth considering before pursuing a lawsuit.

Taking Legal Action

If the property dispute cannot be resolved on its own, court action may be necessary. Courts have broad powers to resolve real estate disputes, such as issuing orders to determine who owns disputed property and entering injunctions to prohibit the unlawful use of land

Conclusion

If you are involved in a property dispute, contact me for a consultation.

Obtaining a Mortgage Discharge

Obtaining a mortgage discharge is a critical part of selling property or refinancing a loan. This simple (but extremely important document) shows that a mortgage was fully paid.

The vast majority of the time, mortgage discharges are properly recorded in the land records, and nothing more needs to be done. On occasion, however, further action is needed if this was not done, or not done properly.

Mortgages 101

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. When a borrower borrows money to buy property, the lender almost always requires the borrower to grant it a mortgage, in case the borrower does not repay the money. This allows the lender to foreclose the property, if the borrower defaults on the debt.

Mortgages, importantly, are filed (known in legal terms as “recorded”) in the appropriate county land registry. This allows anyone (most importantly, a potential purchaser of property) to know that a lender has an interest in the property.

When a mortgage is paid in full (either by the borrower or through a loan refinance), a mortgage discharge must be recorded. This is important for selling property: few, if any, potential buyers of property will want a home with unpaid debt on it!

By law, most lenders are required, on their own, to file a mortgage discharge once the debt is paid in full. Most of the time, this occurs without a problem, and the property owner generally gets notice of this in the mail. This, importantly, must be recorded in the land records along with the underlining mortgage.

Obtaining a Mortgage Discharge: What Can Be Done If A Problem Arises?

Problems with mortgage discharges generally occur when (1) a discharge isn’t recorded or (2) there is a question whether the entity who recorded the discharge had the authority to do so. In either case, what can be done?

The law allows, in specific circumstances, for the filing of an affidavit, which can serve as a mortgage discharge on its own. The law has detailed requirements on what is required for this option. Determining whether this applies should always be the first step in addressing a mortgage discharge problem.

If such an affidavit cannot be done, it is sometimes possible to obtain a new mortgage discharge from the lender. I’ve had luck doing this on a recent case, which saved my client enormous time and money.

If neither of the above are options, a property owner may also file an action in Land Court seeking a court order to discharge the mortgage. Such a case requires the property owner to include the lender as a party, and provide them an opportunity to object. This type of case can be helpful when it is not clear who the lender is, or whether the lender is still in existence.

Final Thoughts

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

Fighting a Zoning Decision

foreclosure appeal

Fighting a zoning decision generally occurs through the filing of a G.L. c. 40A, § 17 appeal in Land Court or Superior Court. Such, an appeal, however, many only be filed by a “person aggrieved.”

On this important topic, the Supreme Judicial Court issued its long awaited decision in Murchison v. Zoning Board of Appeals of Sherborn, a decision that overruled a prior appellate decision on this same matter.

This case is the only time I’ve seen an appellate court announce the outcome of a decision months before issuing a written decision, which underscores the importance of this area of law. The full decision is below.

Overview of Fighting a Zoning Decision

Fighting a zoning decision from a town or city zoning board (usually a Zoning Board of Appeals or Planning Board) is done through a civil court action. A party must file such an appeal twenty days after the decision has been filed in the office of the city or town clerk. After doing so, the party who is the applicant seeking zoning relief has the burden of proving their case.

This is a critical point for fighting a zoning decision. A party who appeals a zoning decision forces the other party to prove its right to zoning relief. This is in contrast to most other civil lawsuits, where the party filing the case has the burden of proof.

Who Has the Right to Appeal a Zoning Decision?

Appealing a zoning decision requires more than simply filing a court case. The law only allows a “person aggrieved” to pursue such a case. In other words, the party must have some real stake in the case outcome (known in legal terms as standing).

A homeowner trying to appeal a zoning decision for a parcel of property on the other side of town would most certainly not be considered a “person aggrieved.” This inquiry, however, gets tricky when it concerns zoning disputes among neighbors and those living near the property.

Murchison determined that an abutter of a property (who is located a specific distance from the property) is not automatically a “person aggrieved.” Rather, a person pursuing a zoning appeal must make a more detailed showing of standing, including a claim of harm from the zoning relief.

Final Thoughts

Standing is a mandatory requirement for a zoning appeal. If a party cannot demonstrate that they are a “person aggrieved,” the case is over.

For this reason, it is critical to have an experienced attorney help you in preparing such a case. If you are involved in a zoning matter, contact me for a consultation.

Murchinson

Dividing Property Through Partition: Three Things to Know

Dividing property through partition is the legal process by which an owner of real property can force the sale of property owned with a co-owner. In Massachusetts, a partition case may be filed in Land Court or Probate and Family Court. In this post, I’ll discuss three things to know about this process.

Partition is An Absolute Right

Partition occurs when multiple persons own real property together, and one wants to sell. If the parties cannot agree to a sale of the property or buy-out of the individual owner’s share of the property, any party may file a case for partition.

In my experience, the most common case for partition occurs when property is owned among family members, such as a home that a set of siblings inherited from their parents. Married couples generally cannot divide property through a partition; such a matter is usually handled through a divorce.

Partition is a matter of absolute right. This means that, with few exceptions, any owner of property owned by multiple parties is entitled to divide the property.

A Court in a Partition Case Can Either Divide the Property or Order it By Sale

Dividing property through partition is done through one of two ways: (1) a physical division of property (“in kind”) or (2) by sale.

Courts prefer to physically divide property, if possible, to avoid a sale. This, however, is not possible in many cases, particularly for residential property in urban cities and towns. When this is not possible, the court will order the property for sale.

Most times, a court in partition will allow any of the parties who do not wish to sell the property to buy the other party’s share, to avoid having to do a full sale, commonly referred to as a “set off.”

Dividing Property Through Partition Is Expensive

One of the main functions of a court in a partition case is to determine who gets what from the sale of the property. The starting point is the ownership shares of each owner. If a brother and sister each own 50% of partition property, this will be the starting point for determining how much each gets from the sale.

While this is the starting point, it is not the end for determining each owner’s portion from sale. A court in a partition case determines the respective shares of each owner based on what is “just and equal.” This means that, if one owner has paid more of the required property expenses than another owner, the court can take this into account when determining the final distribution.

Dividing property through partition, however, is an expensive process. Attorney fees, court costs, and other required fees can add up quickly, and eat into the parties’ proceeds from the property.

For this reason, it is wise to try and avoid a partition altogether and reach an agreement for selling the property without court involvement.

Conclusion

As an experienced real estate attorney, I’ve helped many Massachusetts property owners resolve their legal disputes promptly and affordably. If you are involved in a dispute regarding the division of property, contact me for a consultation.

Deadlines for Enforcing a Mortgage

The Appeals Court issued a decision last week concerning the deadline for enforcing a mortgage in Massachusetts, under the obsolete mortgage statute. The full decision, Thornton v. Thornton, is included below.

Thornton isn’t the first appellate decision to look at this issue, and continues a trend of Massachusetts courts rejecting attempts by borrowers to eliminate mortgage requirements.

What Is a Mortgage?

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. Under a standard mortgage, a lender is permitted to foreclose a property if the debt is not repaid. Without a mortgage, a lender would only have the right to sue the borrower for the owed money, and have no claim to the property itself.

A mortgage, importantly, is only a security agreement, and not the loan itself. While it is common for homeowners to state they are “paying their mortgage”, in reality, the homeowner is making payments towards the loan associated with the mortgage, known as the promissory note.

Mortgages and the Statute of Limitations

Massachusetts, like nearly every other state, has deadlines for bringing civil lawsuits, known as a statute of limitations. A common misconception is that the deadline for bringing a breach of contract claim applies to the enforcement of mortgages. The argument goes that, if the lender has not pursued a foreclosure for the owed loan within six years, no claim exists.

As explained in Thornton, this deadline applies only to enforcing the loan itself . . . not the mortgage. In other words, even if six years has passed since the loan default, the lender can still enforce the mortgage through a foreclosure.

Mortgages and the Obsolete Mortgage Statute

A bar, however, does exist for enforcing a mortgage through the obsolete mortgage statute. This law prevents the enforcement of mortgages in limited circumstances:

35 years from the recording of the mortgage or, in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period. 

The borrower in Thornton argued that this deadline came from the promissory note. The Appeals Court rejected this argument, holding there was no basis for using the deadline from the note for this purpose.

In this case, because there was no maturity date stated in the mortgage, the thirty-five year deadline applied.

Practical Implications For Enforcing a Mortgage

Thorton underscores a critical point about the obsolete mortgage statute: courts, in my view, interpret this law strictly and will not allow a borrower to escape the enforcement of a mortgage unless all conditions of the statute are met. This statute is primarily intended for mortgages that are “up in the attic” and long forgotten by lenders, and courts are reluctant to extend this law much further than that.

This isn’t to say that a borrower has no options against a foreclosure. To the contrary, I’ve help many homeowners avoid foreclosure based on a wide array of defenses. None of these defenses, however, involve an elimination of the mortgage. For this reason, borrowers need to be realistic when dealing with such a matter.

Conclusion

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

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Zoning Litigation: Lessons from a Recent Decision

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on a recently Appeals Court decision on the pitfalls of zoning litigation.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

On April 24, 2020, a panel of the Appeals Court (Massing, Desmond, & McDonough, J.J.) decided Bylinski v. Building Commissioner of Douglas, 97 Mass. App. Ct. 1113, Docket No. 18-P-450 (Rule 1:28 decision) and reversed a court order to demolish a cottage for non compliance with the relevant provisions of the zoning act (G.L. c.40A).  This otherwise obscure case represents a cautionary tale for all zoning practitioners-it’s the latest chapter of a tortuous 11 year Dickensian odyssey through three trial court departments that has spurred, counting this case, five appeals to the Appeals Court.

Background

Bylinski owns property along Wallum Lake in the rural town of Douglas near the Connecticut and Rhode Island borders. Tusino owns Guaranteed Builders (GBI) and bought the adjoining lot through GBI. In 2008, despite insufficient frontage and setbacks, GBI obtained a permit to build a cottage. Bylinski unsuccessfully requested that the building commissioner revoke the permit and then appealed to the zoning board (“The Board.”)

The Board failed to resolve Bylinski’s appeal within 100 days. By operation of law, the Board constructively revoked GBI’s permit. See G.L. c.40A, §15, 5th par. GBI unsuccessfully appealed that order to the Superior Court. See Guaranteed Builders and Developers v. Haire, et. al., Civil Action No. 0985CV2052 (Super. Ct. Worcester Co., filed September 3, 2009).

Bylinski then filed a mandamus action in the Land Court to compel the building inspector to enforce the zoning bylaw and now revoked building permit. In the meantime, GBI successfully finished building the cottage. GBI then unsuccessfully sought a variance from the frontage requirements and litigated the issue all the way to the Appeals Court. Guaranteed Builders v. Zoning Board of Appeals of Douglas, 85 Mass. App. Ct. 1101, Docket No. 2013-P-948 (Rule 1:28 Decision, Feb. 21, 2014).

At the same time, the Land Court judge dismissed Bylinksi’s petition for mandamus because Bylinski had not exhausted his administrative remedies before. Bylinski appealed the Land Court’s order to the Appeals Court and pursued administrative relief at the same time. While Bylinski’s appeal was pending, the Board sided with him and reversed the building commissioner’s refusal to enforce the zoning bylaw and issued a demolition order.

The demolition order contained curious language-the order did not require the town to demolish GBI’s house. But the order also did not limit Bylinski’s right to seek direct injunctive relief if GBI and Tusino did not demolish the house. GBI unsuccessfully appealed that order to the Uxbridge District Court before appealing to the Appeals Court.

The Appeals Court consolidated and ultimately dismissed Bylinski’s and GBI’s appeals. See Tusino v. Zoning Board of Appeals of Douglas, et. al. 90 Mass. App. Ct. 89 (2016). Specificially, GBI had appealed to the wrong court by appealing directly to the Appeals Court rather than to the Appellate Division of the District Court-and they were out of time to go back there. Since dismissing GBI’s appeal made the demolition order final, Bylinski’s appeal from the Land Court’s denial of mandamus became moot because he obtained all the relief he sought.

Curiously, Bylinski did not seek to enforce the demolition order from the District Court. Rather, Bylinski went back to the Land Court, reopened his case, joined Tusino as a defendant, and sought an injunction to demolish the completed but empty cottage. (The Building Commissioner has never issued an occupancy permit.) In December 2017, a Land Court judge  finally ordered that Tusino and GBI demolish the cottage or risk being held in contempt of court. Tusino and GBI appealed and successfully stayed the demolition order.

The Appeals Court’s Most Recent Decision

Preliminarily, the panel resolved two procedural issues. First, the panel reached the merits notwithstanding that there were unresolved claims against parties below and the Land Court judge did not certify an immediate appeal under Mass. R. Civ. Pro. 54(b). Indeed, holding otherwise would needlessly further prolong this case. Second, in a lengthy footnote, the panel held that Bylinski properly and timely joined Tusino. By law, trial courts had authority to join any dispensable to permit the case to proceed and related back to the original pleadings-and thus were not outside any statutes of limitation or repose. See FN7, citing G.L. c.231, §51.

Cleared of that underbrush, the panel considered whether Bylinski, as an individual, could seek an injunction from the Land Court to compel Tusino and GBI to demolish the house. The panel comprehensively reviewed the relevant procedures under the zoning act.

G.L. c. 40A, § 7 permitted any person to request that the building commissioner (or other local official) to enforce the zoning by laws. If the party failed to obtain relief from the building commissioner, the party could appeal to and obtain enforcement orders from the zoning board, same as the building commissioner. G.L. c.40A, §§8, 14. If the party still remained aggrieved, they could then pursue judicial review and broad equitable relief. G.L. c.40A, §17.

 Section 7 empowered the Superior Court and the Land Court to enforce zoning bylaws and issue injunctions to remedy bylaw violations. However, Section 7 also contained an important caveat: “no action, suit or proceeding…[or] administrative action or other action…to…compel the removal..of a structure [for violating] a zoning by-law [shall proceed] except in accordance with this section and sections 8 and 17.” This limitation dovetailed with the important principle that  there is no private right of action to enforce zoning bylaws-a private citizen cannot go directly to court to enforce the zoning bylaws when a town or city does not.

The case distilled to whether Bylinski had assiduously followed these procedures. The panel concluded he had not. First, Bylinski’s case could not constitute a zoning appeal under Section 17 because he did not perfect the appeal under Section 17. Bylinski already obtained a demolition order from the Board-thus, he was not an aggrieved party who could appeal.

Although the Board’s order suggested that Bylinski himself could compel demolition, by law, only a building inspector or a zoning board could directly enforce zoning bylaws and compel demolition without pursuing administrative remedies. Bylinski had not done so, and thus the Land Court judge could not issue a demolition injunction directly against Tusino on Bylinski’s behalf. However, Bylinski had remedies. First, he could renew his mandamus action in the Land Court against the building commissioner. Second, he could reopen the District Court case where the demolition order issued. Indeed, because Bylinski remained an aggrieved abutter, he could seek repeated requests for enforcement based on changed circumstances.

The Takeaways

Are There Too Many Zoning Appellate Forums?

This case illustrates how the breadth of forums for zoning appeals can cause problems. Under G.L. c. 40A, §17, one may appeal a zoning board’s order to either of four trial courts: the District Court (except in Hampden County [Springfield]), the Housing Court, the Land Court, or the Superior Court. As occurred here, parallel actions can arise in any or all of those courts.         

This broad choice of forum has also caused serious mischief in the past.  In Skawski v. Greenfield Investors Property Development, 473 Mass. 580 (2016), abutters filed a zoning appeal in the Housing Court challenging a large development in Greenfield. The developers sought transfer to the permit session of the Land Court-which the Legislature specifically created to streamline challenges to large developments. 473 Mass. at 582-583 (describing their requests for transfer), and 586-591 citing G.L. c.185, §3A. Nearly five years later, the SJC finally concluded that the abutters erroneously went to the Housing Court but could press their zoning appeal to either the Land Court or the Superior Court. 473 Mass. at 591-593.

Confused yet? It gets better. Until Tusino’s 2016 appeal, all further appeals in zoning cases proceeded uniformly to the Appeals Court, even if they originated in the District Court. Tusino, 90 Mass. App. Ct. at 91, citing Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983). Indeed, when a litigant can file a case in the District Court or in another trial court, all appeals in that type of case should proceed to the Appeals Court to ensure uniform treatment of litigants. See e.g. Van Liew  v. Stansfield, 474 Mass. 31, 34-36 (2016). 

 But in Tusino, the Appeals Court held that the Legislature effectively overruled Walker by expanding the equity jurisdiction of the District Court and creating the “one trial system” during the 2000’s. 90 Mass. App. Ct. at 91. The Appeals Court reached this result despite their established rule that they do not and cannot overrule the SJC to alter established rules. See e.g. Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973). Put another way, if the SJC incorrectly decided Walker, or if the Legislature overruled Walker, it was up to the SJC and the SJC alone to overrule Walker. This decision also does not ensure uniform treatment of litigants.

If Section 17 commands that zoning appeals “shall have precedence over all other civil actions and proceedings”, the prospect of parallel actions in up to four trial courts with up to three layers of appellate review hardly seems to accomplish that end. Worse, as in Skawski, the issue of zoning appeal forum selection arose twice and two different trial court Chief Justices took no action to resolve it before it reached the SJC. 473 Mass. at 582-583.

How can you avoid forum wrangling? File the zoning appeal in the Land Court or the Superior Court to keep a case before one judge. Indeed, in the Land Court, all cases proceed before one judge for their entire legal lives there. Land Court Standing Order 1-04(B).  In the Superior Court, you can seek a special assignment of one judge. See Superior Court Standing Order 9-80. If there are multiple related cases in multiple courts, move to consolidate all your cases into one court pursuant to Trial Court Rule XII. Indeed, there is a presumption of consolidation in cases involving identical parties and issues.

Coordinate with Town Officials

This case also, at best, does not flatter, and at worst, is “a study in mulish behavior” of town officials and town government in Douglas, Darcy v. Hankle, 54 Mass. App. Ct. 846, 847 (2002) (Kass, J.) The Building Inspector allowed Tusino to build his cottage. Ironically, Bylsinki won his appeal by appeal by operation of law because of the Board’s inaction on it. Although the Board denied Tusino’s request for a variance, the Board still did not act to stop him from building the cottage. And, the Board wrote an ambiguous demolition order. Practitioners should be alert to whom they are working with locally and ensure that all interests are aligned. If you are seeking mandamus relief, be sure that the official government has no discretion not to act, with a statue or regulation that reads “shall”-and you have no other remedies.

Seeking Additional Appellate Review of Zoning Decisions

This case also exhibits some perils of taking an appeal. Bylinski could have avoided some appellate review by seeking to stay appellate proceedings to obtain administrative relief.  If a party validly entered their appeal, trial courts cannot enter orders that could moot appeals that are pending without leave of an appellate court. Springfield Housing Authority v. Garcia, 44 Mass. App. Ct. 432 (1998) . The same logic should apply to seeking administrative relief.

Moreover, neither party seemed alert to how this appeal was not from a truly final judgment-i.e. that the order resolved all claims against all parties. See e.g. Patel v. Martin 481 Mass. 29, 31-32 (2018). The best practice is to resolve that issue before appealing. The lack of a final judgment is potentially a serious jurisdictional defect. Had this case not dragged out for 11 years, the panel may not have exercised their discretion to decide the appeal.

Finally, this opinion is the latest in an unfortunate prevalence of unpublished opinions. The Appeals Court typically issues unpublished opinions in cases that present “no substantial question of law.” Appeals Court Rule 1:28, soon to be Appeals Court Rule 23.0. These issues do not seem to fit that rule. The question of who had the power to compel demolition seems to arise in an unusual context. A published decision could have clarified that issue as the panel’s decision cites many older cases and practitioners could have benefitted from that.

The end result of an unpublished decision is strange given the timeframe. The panel originally heard this case in January 2019. An April 24, 2020 decision is nearly a year beyond the Appeals Court’s internal guideline to resolve appeals within 130 days of argument.

Granted, cases can last longer under advisement if the Appeals Court will publish it. This is the “second panel” process where every Justice on the Appeals Court reviews the decision-and, if there’s a dissent, the panel may expand. See Sciaba v. City of Boston, 35 Mass. App. Ct. 181, n.1 (1993). But a party cannot compel the full Appeals Court to consider an appeal. Weber v. Appeals Court, 457 Mass. 407 (2010).

Given this background, this case seems like a candidate for further appellate review by the SJC. This case has lasted for 11 years-and the Appeals Court’s decision seems to all but assure further litigation. On practical level, it seems highly wasteful to have an unoccupied cottage taking up space along Wallum Lake because there is no occupancy permit for it-and it’s going to stay that way on remand.

 Although allowance of further appellate review may further prolong this case, further appellate review may finally spur a resolution to this case. The SJC tends to expedite matters on FAR. Indeed, historically, the SJC has seemed concerned about zoning matters dragging out-as in Skawski. See also Murchison v. ZBA of Sherborn, SJC-12867, on further appellate review from 96 Mass. App. Ct. 158 (2019), Paper No. 23 (affirming dismissal for lack of standing with an opinion to follow.) As of now (May 31), no application has been filed.  

 In sum, this decision should operate as a clarion warning for zoning practitioners about how litigation can proliferate out of control. But there are steps practitioners can take to avoid these pitfalls. Moreover, if the SJC does not step in to remedy how these trapdoors opened, the Legislature should-particularly about the breadth of  choices of forum in zoning cases.

 Joseph N. Schneiderman is an appellate practitioner in Massachusetts and Connecticut with particular affinities for zoning, municipal law, and appellate practice and procedure. Joe recently argued his 20th appeal in his career and Joe gratefully thanks Adam for another opportunity to blog.