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September 2019 Archives

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.

Appeal Bonds: A Litigation Unicorn

In Massachusetts (and United States, generally), civil litigants are responsible for paying their own legal fees. This concept is known as the "American Rule". It matters not that you were sued by your neighbor and did not want to be involved in a lawsuit; or that you felt compelled to bring suit against a developer as a last ditch effort to protect the character of your neighborhood. It also does not matter if you win. You are going to pay your legal fees. There are, as in all things in the legal world, some limited exceptions to the American Rule, and we will discuss those in another blog post.

Abstract of title provides important information

Part of the process for buying real estate is to research the title of the property. This is important because the title shows the ownership of the property, and you want to be certain the person selling the property truly owns it or has the authority to sell it. The title search can be time consuming, and it is wise to leave that to a professional, such as a skilled real estate attorney.

Planning and Development official accused of accepting bribe

There are many real estate developers in the Boston area who understand how frustrating and time-consuming the process can be. There are many levels of government that property developers need to go through, and projects can take many years to complete.

Do Private Parties Have the Right to Enforce Covenants and Conditions Imposed by a Planning Board as Part of an Approved Definitive Subdivision?

Recently we were asked to address the right of lot owners in an approved subdivision to enforce the terms of a covenant imposed by the Planning Board as part of the definitive subdivision approval. The restriction barred further division of lots. The Planning Board, however, approved a further division by endorsing an Approval Not Required (ANR) plan pursuant to G.L. c. 41, § 81L. Multiple lot owners in the subdivision brought suit in the Land Court challenging the ANR Plan as legally-untenable because it violated the terms of the underlying subdivision approval and covenant. This post explores the nature of such planning board covenants and who can enforce them.

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