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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.

An Alternative Avenue for Adjudicating Zoning Questions: Declarations Under G.L. c. 240, §14A

The Massachusetts Zoning Act sets forth a thorough process for those persons seeking or opposing zoning relief to have their grievances adjudicated. Usually, the first stop is at the local building inspector or zoning enforcement officer. If unsatisfied, an appeal is typically available to the zoning board of appeals. Finally, after "exhausting" this administrative process, a party may file an appeal to the Land Court or Superior Court. If the dispute has arisen from the issuance or denial of a building permit (or other zoning relief), the foregoing process is obligatory (with a few rare exceptions). This obligation is referred to as the duty to "exhaust" administrative remedies.

Easement Basics Part I: What They Are, Appurtenant Versus Personal Easements, and the Taxonomy of Claims

A significant percentage of our case load, here, at Phillips & Angley, involves disputes over easements, also known as use rights, particularly over access and private way issues. Easement law comprises some of the oldest law in the United States, as we inherited many of the legal concepts and rules from England, in Colonial times. It has its own terms of art, causes of action and particular rules, developed over the centuries as the common law has evolved. This is the first in a series of posts that are intended to give a basic primer on these issues.

Application of General Laws Chapter 40A, Section 7 and the Two Limitation Periods for Zoning Enforcement to an Improperly Sited Structure.

Recently we were asked to address the situation where a landowner obtained a use special permit with a condition that the structure containing the use be built as located on a designated site plan, and that a final as-built plan be filed after completion of construction. A building permit issued for the structure, but without reference to the site plan or location of the structure. The structure was built and occupied. No final as-built plan was ever filed. More than 10 years passed. It was later determined that the structure was sited on the lot incorrectly. The landowner became concerned that the structure located on its property was not properly authorized and so was unlawful, rendering the property non-compliant with zoning.

Accounting Actions in Partition Proceedings; How Partition Sale Proceeds Are Divided and Disbursed

As previously discussed in our blog post regarding the Nuts and Bolts of a Petition to Partition, a partition proceeding is a legal action to dispose of jointly held property "to balance the rights and equities of the parties concerning the property at issue." Gonzales v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007), quoting Moat v. Ducharme, 28 Mass. App. Ct. 749, 751 (1990). In order to balance the equities of the parties, the court has wide latitude, in equity, to determine how the proceeds from a partition sale the partition should be distributed. See G. L. c. 241, § 25.

Standing Gets Stickier: Murchison v. Zoning Bd. Of Appeals of Sherborn

We have written a number of posts over the years discussing the requirements for standing in zoning appeals in Massachusetts, see here, here, here, here, here, and here to start. On September 30, 2019, the Appeals Court decided to add another twist to this already complicated body of law.

Variance Conditions Revisited: Green v. Board of Appeals of Southborough; The Difference between Exercising Variances and Satisfying their Conditions

We previously blogged about a case study, which we encountered in representation of a kennel before a local zoning board, regarding how conditions of variances work and how they are applied and enforced. Recently, the Appeals Court published Green v. Board of Appeals of Southborough, adding to the body of law on these issues. In particular, Judge Wolohojian, writing for the panel in Green, explicated the difference between those things which a variance holder must do to "exercise" the variance within one year as required by G. L. c. 40A, § 10, on the one hand; and the meaning and effect of a variance condition, which acts as a condition precedent (a precondition) to a holder being able to take advantage of the variance, on the other. As discussed below, the former refers to those acts necessary to give the variance legal effect, in the first instance; whereas the latter must be fulfilled in order for the variance holder ultimately to make use of the variance.

The Nuts and Bolts of a Petition to Partition: Filing a Petition with the Court

A petition to partition initiates a legal proceeding, which allows a co-owner of real property to dispose of the same by physical division or forcing a sale. Petitions to partition are governed by G.L. c. 241. Each co-owner of property has the "'equal right of entry, occupation and enjoyment'". Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 (2008), quoting Muskeget Island Club v. Prior, 228 Mass. 95, 96 (1917). However, if, for whatever reason, a co-owner no longer wishes to hold title to the property with his or her other co-owners, then that individual has an absolute right to file a petition to partition to dispose of the co-owned property. See Hershman-Tcherepnin, supra at 92. Parties can, however, enter a contract that may limit or restrain their rights to partition co-owned property, if the restraint is for a reasonable period of time. See id. at 93.

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