Today we offer a quick refresher of sorts. When it comes to real estate development-whether it be incorporating a new use, building a structure, or somehow otherwise modifying the existing conditions on site-there are several sources of laws and other "restrictions" that the developer and/or landowner should be aware of in advance. These include the following:
In my last post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I discussed exceptions and reservations under Subsection (b) of that statute, which exempt conveyances from the law's operation. But, what are exceptions and what are reservations in deeds?
In my previous post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I addressed the basics of its application and noted that most of the case law interpreting the statute concerns what it means to be "real estate abutting a way". A small handful of cases, however, has focused on how to opt out of its application-what constitutes "an express exception or reservation" under the statute.
The so-called Derelict Fee Statute, General Laws Chapter 183, Section 58, comes up with great frequency in our practice, because people often get into disputes over the ownership and, thus, control of private ways. The statute governs the interpretation of deeds when they convey title to properties that abut ways in Massachusetts, where the grantors also own those abutting ways. By operation of the statute, title to property abutting a way carries with it either (i) ownership to the midpoint of the way, when the grantor retains land on the other side of the same; or (ii) ownership of the entire width of the way, when the grantor does not own land on the other side of the same. The only effective method to overcome the operation of the statute is to include "an express exception or reservation" of the ownership interest in the way in the deed itself. See Tattan v. Kurlan, 32 Mass. App. Ct. 239, 245 (1992). Resort cannot be made to evidence outside of the four corners of the instruments of conveyance and the plans of record incorporated into the same by reference. See McGovern v. McGovern, 77 Mass. App. Ct. 688, 699 (2010).
To the unwary, it might be surprising that property dating back to the 1870s could, almost 150 years later, fall prey to a boundary line dispute. But it does happen, as the recent case, Bernier v. Fredette, 85 Mass. App. Ct. 265 (2014), reminds us.
When most people think about the kinds of cases that are litigated at the Land Court, forensic analysis of evidence is not likely at the forefront of their minds. Most people likely think that those kinds of juicy cases are reserved for criminal trials in Superior Court.