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.
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.
The age of Massachusetts lends itself well to preservation easements. These kinds of easements, also referred to as preservation restrictions, create tax and other benefits for owners of historic properties in exchange for certain restrictions that will protect and preserve the historical and architectural significance of relevant structures and/or landscape features.