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
If you are involved in a property dispute, contact me for a consultation.
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.
If you need assistance with a real estate matter, contact me for a consultation.
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 property law areas, 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 the legal owner’s permission. 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. An 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 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 not have 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 one of these claims’ requirements.
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 property use creates a presumption that such use is adverse (non-permissive).
This presumption is essential 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 any persons whose property may fall under such a claim must be part of the action in an adverse possession case.
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.
If you find yourself involved in a property dispute concerning adverse possession, contact me for a consultation.
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.
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.
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.
The Massachusetts Supreme Judicial Courtissued 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.
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 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 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 tree owner 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.
Whether a tree is “healthy” was a critical factor in 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 tree owner will not automatically avoid liability for such damage. Likely, in such a case, the owner will have liability for any resulting damage.
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 from encroaching trees.
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 statute 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. 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 sale’s specific details.
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 help you draft 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 cannot buy or sell the property.
Enforcing or Defending a Real Estate Purchase Agreement
Buying your first home can be both an exciting and stressful experience. While homeownership 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 to 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 has consisted 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 before 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 homeownership. 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 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 homeownership expenses. Rental property can be an excellent investment, but you need to consider the demands of becoming a landlord before 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 homeowners who are not married, the process can be even more complicated. If the non-married homeowners split up and cannot 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 committing to 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.
Here’s hoping the purchase of your first home is a stress-free and rewarding experience. If 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.
Adverse possession is an area of law that every Massachusetts property owner needs to be aware of. These types of claims allow 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 users 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.” An adverse possession claim can often 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 doing this properly, to avoid losing 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 property.
If you find yourself in such a scenario, it is worth speaking to an attorney on preventing adverse possession. I have helped other homeowners with similar claims and can provide the guidance necessary to resolve these tricky matters.
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 help protect 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 judge must sign a lis pendens after finding that the underlining lawsuit 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. However, the practical effect of a lis pendens 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 affect 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 lawsuit’s facts are correct.
Before 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.
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.
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
For the past thirty years, my clients were homeowners who 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.
I filed a lawsuit against the new owner of the property seeking a declaratory judgment that my clients were entitled to the parking lot’s permanent use. A declaratory judgment is a court order to determine one’s rights under the law. A court order like this is needed when the lawsuit’s goal 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 subject property owner never permitted them to use the property.
The use of the property must constitute actual use. This means that the person using the property used it so that property of that type is commonly used.
The use of the property must be open and notorious. Simply put, the property’s use 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).
As with all claims of adverse possession and easements by prescription, the “devil is in the details.” Proving one of these claims requires understanding 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 critical matters. Here, parking access was essential to my clients, who lived in a city with limited off-street parking, making this easement by prescription a huge benefit to my client’s 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 property use, 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.