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.
One of the most vexing issues involving zoning and land use practice in Massachusetts is how site plan review decisions, rendered by local planning boards, are appealed. In fact, we were recently asked by Mass. Lawyers Weekly to comment on this topic, as well as a recent Land Court decision on the same.
This is the fourth in a series of posts on challenges to zoning bylaws and ordinances. Before reaching the merits of zoning challenges, one more jurisdictional issue should be considered: standing-also referred to in the case law as "harm", "injury" or "aggrievement". "'The question of standing is one of critical significance. "From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.'"' Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1988), quoting Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 715 (1996), ultimately quoting Doe v. The Governor, 381 Mass. 702, 705 (1980).
On January 4, 2017, the Land Court, Scheier J., issued a decision in Stafford v. Flett, Land Court Docket No. 15 MISC 000134 (KFS), which granted declaratory judgment to P&A's client, the Defendant, declaring that she owns outright an area of her property that included a parking spot, grassy slope, staircase, and cobblestones and flagstones pavers (the "Disputed Area"), free and clear of any of the Plaintiff's claims. In its decision, the Court denied the Plaintiff's claims for adverse possession of or, in the alternative, a prescriptive easement over the Disputed Area. The Court agreed that the element of adverse use required for claims for adverse possession and prescriptive use rights was not established by the Plaintiff due to an oral license agreement allowing Plaintiff to use the Disputed Area, which agreement had been in place since the putatively-adverse use had begun.
On October 19, 2016, the Massachusetts Land Court issued a Memorandum and Order on Cross Motions for Summary Judgment in Roma, III, Ltd. v. Town of Rockport Board of Appeals, Land Court Case No. 15 MISC 000074 (RBF), granting P & A's client, the plaintiff, Roma, III, Ltd.'s Motion for Summary Judgment, annulling a decision of the Town of Rockport Board of Appeals.
This is the second in a series of posts on challenges to zoning bylaws and ordinances. An important threshold issue, apart from diagnosing what type of bylaw challenge should be brought, is where to bring these claims. Depending on the circumstances, these claims may be brought in the Land Court, the Superior Court or the United States District Court for the District of Massachusetts. This post will address the considerations applicable to the Massachusetts Land Court.
On February 8, 2013, the Supreme Judicial Court another land use/real estate decision in White v. Hartigan, 464 Mass. 400 (2013), a case on direct appellate review from the Land Court. At issue in the case (a quiet title action) was whether the plaintiffs owned a fractional interest in a beach located on Martha's Vineyard, or, alternatively, whether they had acquired a prescriptive easement to use the beach and the land leading thereto.
Easements come up a lot in our practice at Phillips & Angley (for a recap of easement basics, see our April 19, 2012 post). When we receive a call involving an easement, the easement, or right of way, is typically the focus of the dispute, but sometimes an easement itself can be the vehicle for resolving the controversy, particularly in adverse possession cases. This post concerns a change in the law of easements, effected by the Supreme Judicial Court in 2004, which has created new flexibility for property owners in regulating rights of way and defending against easement claims over their properties.
An interesting case-much less frustrating one for the plaintiff-developer involved-came out of the Appeals Court at the very end of 2012. In Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, Docket No. 11-P-1159 (Mass. App. Ct. Dec. 28, 2012), the sole issue before the court was whether the Housing Court had jurisdiction to decide a transferred case that was initially filed in the Land Court permit session.
In many real estate cases, a thorough title search is often necessary to understand the nature of the interests held in the property in question. A title search will also help identify any encumbrances and/or interested parties that may affect the outcome of the pending matter.