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Will you have full control of the property you want to buy?

When you started your property hunt, you probably expected your search to end with your owning and fully controlling it. Unfortunately, as you go through the buying process, you could discover that certain factors may prevent you from having full control and ownership of the property.

Encumbrances are not necessarily unusual, but they can prove frustrating. These items may limit your use of the property or your ability to sell the property at some point in the future. It's vital to understand the impact of any encumbrances on the property before you close the deal. The two types of encumbrances you may discover are liens and easements.

Issues to consider when planning a new development

Most new developments here in Massachusetts and elsewhere begin with the purchase of the land on which the construction or renovation will occur. If you are looking to purchase land for development, you will need to consider a variety of issues before committing to making an offer.

Failing to consider certain matters could end up halting development, complicating construction and costing a significant amount of money. For this reason, it would be a good idea to thoroughly scrutinize the situation before moving forward.

Will your new property contain restrictions on use?

If you are looking for property on which to build a home or establish a development, you have many items on your checklist. You want land that is appropriate for sustaining improvements, is convenient to amenities and is zoned to meet your needs. However, it is also important that you investigate whether the purchase of the land will include any restrictive covenants.

Restrictive covenants are frequently part of a homeowners association agreement if you purchase a home in certain developments. You should receive a copy of those restrictions before you close on your home. However, some landowners include other restrictions that may not be evident unless you ask for them. It is wise to inquire about restrictive covenants before you sign any contracts.

Entry onto Neighboring Land for Maintenance and Repair - Trespass, Licenses and the Application of G.L. 266, § 120B

Many sections of the greater Boston area are characterized by densely populated neighborhoods. Many of these neighborhoods were established before the adoption of zoning codes that set minimum side and rear yard setbacks. And even today, in urban settings, there are some zoning codes that allow zero-foot set back criterion in some zoning districts. The result is that there are many structures in the Commonwealth built on, or within, just a few feet of a lot line. And in urban areas, there are row houses with shared party walls and adjoining roof lines. The proximity of these structures to abutting lot lines makes it extremely difficult or sometimes simply impossible for a property owner to make a repair to their property without entering their neighbors' land.

Phillips & Angley - Public Announcement on COVID-19 Pandemi

In light of the Coronavirus (COVID-19) pandemic, we will continue providing legal services, while taking appropriate steps to insure the health and safety of our staff and clients. Part of that effort is to work remotely to the greatest extent possible and limit the time that attorneys and staff are in the office. Our goal is to continue offering the highest quality legal services, in a manner that will be convenient and safe to all. Our office has full remote access capabilities so that our attorneys are fully able to access phone calls, draft and respond to emails, write letters, access our servers, conduct legal research and provide the kind of services that our clients have come to expect.

Easement Basics Part III: How Easements Are Extinguished

Having discussed what easements are, and how easements are created, this Part III of our series on easement basics will address how easements cease to exist-are extinguished or terminated. Once granted, an appurtenant easement generally has perpetual existence, as it comprises a vested property right, subject only to the application of various theories of extinguishment, recognized by Massachusetts common law. Therefore, if your property is subject to an easement, even a paper way, i.e., a right of way that exists only on paper, on a plan, and has not been developed on the ground, in order to use and/or develop your property as if the easement does not exist, you would need to satisfy the elements of one of the following theories: (1) release, (2) merger, (3) frustration of purpose / impossibility, (4) abandonment (5) adverse use, and (6) estoppel.

Phillips & Angley Attorneys, Nick Shapiro and Robbie Hopkins, Successfully Assist in Overturning Erroneous Appeals Court Decision before the SJC

Phillips & Angley attorneys, Nick Shapiro and Robbie Hopkins, co-authored and filed a friend of the court brief on behalf of the Real Estate Bar Association of Massachusetts and the Abstract Club, in the further appellate review proceedings, before the Supreme Judicial Court (the "SJC"), in Murchison v. Sherborn Zoning Bd. of Appeals, SJC-12867. In that brief, Shapiro and Hopkins advocated for the overturning of the Appeals Court's decision in Murchison v. Sherborn Zoning Bd. of Appeals, 96 Mass. App. Ct. 158 (2019); which itself had reversed the judgment of the Land Court, Scheier, J., dismissing the abutter appeal for lack of standing. For background and context on the Appeals Court's decision in Murchison, see Hopkins's blog post of October 16, 2019.

Has someone adversely possessed your property?

If you aspire to develop property in Massachusetts, you may be always on the lookout for a promising piece of land. If the land has been sitting vacant for some time, you may want to do a careful examination of the property lines. This includes land you may already own but have not yet developed. You should not be surprised to learn that neighboring property owners have begun to encroach on your land.

Whether this encroachment happened accidentally or intentionally, the law may not be on your side. In fact, you may be facing a case of adverse possession. This is the involuntary transfer of land from the one who owns it to someone who puts it to use. Understanding the components of this law may help you decide the most appropriate course of action to take if someone is encroaching on land you hope to develop.

You know you need a title search done but aren't sure why

When you purchase a piece of property here in Boston, or anywhere else for that matter, you want as much assurance as possible that you will actually own the property free and clear. You may assume that once the relevant parties execute a deed putting the real estate in your name that task is accomplished.

Unfortunately, that may not always be the case. As half of poet Alexander Pope's idiom goes, "to err is human," and any time a human is involved in the transfer of property from one person to another, mistakes can happen. Those mistakes could prevent you from truly owning that piece of property you are about to purchase. For this reason, you should conduct a title search in order to flag any of those errors. 

Easement Basics Part II: How Easements Are Created

In this part II of our series on easement basics, we will discuss how easements are created. Broadly-speaking, easements are established in three ways: by (1) express grant/reservation; (2) implication; and (3) prescription. As to each of these theories, "[o]ne claiming the benefit of an easement bears the burden of proving the existence of that easement on the servient estate." Hickey v. Pathways Ass'n, Inc., 472 Mass. 735, 753-754 (2015). This burden extends to the extent and scope of any use rights over the Right of Way. Swensen v. Marino, 306 Mass. 582, 583 (1940) (scope); Hamouda v. Harris, 66 Mass. App. Ct. 22, 24 n. 1 (2006) (extent). Each theory of easement creation will be addressed in turn.

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