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Real Estate Law Archives

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.

PRIVATE WAY MAINTENANCE AND REPAIR RIGHTS AND OBLIGATIONS, PART I: COMMON LAW

Massachusetts contains thousands of private streets and ways; on and along those ways innumerable residents of this Commonwealth live. We know that the Derelict Fee Statute operates to resolve ownership questions regarding these private ways. However, the "statute pertains only to the question of ownership of the fee [in a private way]"; it does not govern use, maintenance, or other rights and/or obligations over a way, which, for the purposes of this blog post, fall within the province of the common law of easements. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005).

Phillips & Angley Win Summary Judgment on Judicial Estoppel, Recoupment, and Quantum Meruit in Land Court

On November 14, 2016, the Land Court, Foster J., issued a Memorandum and Order Allowing Plaintiff's Motion for Summary Judgment in Fitchburg Capital, LLC, v. Bourque, Land Court Docket No. 12 MISC 464577 (RBF) in which the Court granted summary judgment for P&A's client, Plaintiff, Fitchburg Capital, LLC. The Memorandum and Order dismissed the Defendant's counterclaims for recovery of rental income pursuant to theories of conversion and accounting. In doing so, the Court agreed with Fitchburg that the Defendant's counterclaims were barred by all of three asserted bases: judicial estoppel, recoupment, and quantum meruit (unjust enrichment). Fitchburg's motion was successfully argued by Robert K. Hopkins, Esq.

What constitutes a legally binding real estate agreement?

Gone are the days when all real estate transactions are individually signed by each party and completed contracts are exchanged on paper. Rather, in today's digital age, many dealings are handled through electronic signatures, or what are deemed to be electronic signatures, with no exchange of actual signed paper documents. While this has sped up the pace of forming and finalizing real estate contracts, and created great convenience for buyers, sellers, real estate agents and attorneys, it also raises important questions about when and if a contract has been formed, the terms of that contract and, of course, has created fertile ground for disputes. There are two primary types of disputes that have emerged. One concerns whether negotiations conducted via email or even text message can form a valid and binding agreement. The second involves whether a written contract, the terms to which have been agreed to, can be made effective without an ink to paper signature. In either instance, it behooves participants in transactions involving the sale or lease of real property to understand what constitutes a legally binding agreement in the state of Massachusetts.

Choosing A New Business Location? Consider These 4 Things.

Location. Location. Location. It's a phrase that anyone who has considered buying property knows well. When it comes to residential property, location can have a major impact on lifestyle and livability. When it comes to a new brick and mortar business, it can mean the difference between success and failure.

Is Boston facing another real estate bubble?

While banks are attempting to take advantage of Boston's commercial real estate market, there are concerns regarding another possible real estate bubble. Lending by the Boston area's 25 largest banks has risen by approximately 40 percent over the past three years. The national average during this same period was 16 percent.

CHAPTER 7 OF BANKRUPTCY CODE & STATUS OF JUDICIAL LIENS ON REAL PROPERTY POST-DISCHARGE

In Christakis v. D'Arc, 471 Mass. 365 (2015), the SJC addressed the interplay between Chapter 7 of the Bankruptcy Code, judicial liens on real property, and the interplay between state and federal law. Specifically, the issue on appeal was "whether judicial liens on real property remain valid after the owner of the property receives a discharge under Chapter 7 of the Bankruptcy Code."

Derelict Fee Statute and Easements by Estoppel

We have repeatedly posted about the so-called Derelict Fee Statute, G. L. c. 183, § 58, in the past here at P & A. One aspect of the statute that we have not discussed is the interplay between the statute, which governs ownership of private ways, and the use rights that flow from properties' abutting the same. Many people, even seasoned practitioners, assume that ownership to the midpoint of the way carries with it an easement over the full length of the way. See Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987) ("[a]s a general rule, the title of persons who acquire land bounded by a street or way runs to the center line of the way, G.L. c. 183, § 58, and carries with it the right to use the way along its entire length").

The Limits of Appurtenance

A few years ago, we posted a piece on easement essentials and types of appurtenant easements. Expanding on that theme, this post focuses on the concept of appurtenance and the inherent limitations it places on such use rights. As the prior post informed, appurtenant easements run with, and benefit, the land to which they attach; whereas in gross easements are personal use rights. Most easements are appurtenant rather than in gross because, as a matter of Massachusetts law, "[a]n easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate." Willets v. Langhaar, 212 Mass. 573, 575 (1912).

PARTITION, LANDLOCKED PARCELS, & EASEMENTS: A RECENT CASE

A few weeks ago, the Appeals Court issued a decision that potentially affects several landlocked parcels in Aquinnah (Gay Head) on Martha's Vineyard. As a result of this decision (Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015)), which reversed and remanded a Land Court decision/judgment, these landlocked parcels have been deemed to have easement rights that have been in dispute for some time. Or at least that's what the majority opinion decided. There was a stong dissent written by Associate Justice Peter W. Agnes.

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