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Real Estate Law Archives

LITIGATION AND SETTLEMENT--IT'S NOT ALWAYS EITHER/OR

Initially, this post was going to be about the substantive portions of the disputed claims in Perry v. Nemira, 2015 WL 179045, 11 MISC 457157 (AHS) (Mass. Land Ct. Jan. 15, 2015), which focused primarily on claims of right via prescriptive easements and adverse possession. In a word, the decision is lengthy (mostly due to the various chains of title that must be parsed out) and hard to condense into a neat little blog post.

Permanent Injunctions, Real Property and Finality

"'It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.'" Taylor v. Sturgell, 553 U.S. 880, 884 (2008), quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940). Likewise, strangers to a judgment do not generally have the standing to enforce the same. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975). These principles also find their expression in the requirement under the res judicata doctrines of claim and issue preclusion that there be identity of the parties in order for a claim to be barred or an issue closed for consideration by prior litigation. See, e.g., Heacock v. Heacock, 402 Mass. 21, 23-24, 25 (1988). These principles also reflect substantive and procedural Due Process concerns. People should have their days in court, and not be bound by others' days in court. It is for this reason also that default judgments, Treglia v. MacDonald, 430 Mass. 237, 242 (1999), and consent decrees, New York Cent. & H.R.R. Co. v. T. Stuart & Sons, Co., 260 Mass. 242, 248-249 (1927), have no preclusive effect in subsequent litigation.

EASEMENT DISPUTES & LIS PENDENS

Let's say you and a neighbor are in dispute about whether you've got a valid easement to cross over his property. Suppose the disputed portion of land is a dirt path that you need to use in order to access the boat launch at the pond shared by all the homes in your neighborhood. You assert that you have a right to travel on this dirt path. He disagrees, and even goes so far as to put up a locked gate across the path thereby blocking your access.

Phillips & Angley Wins Appeal in Permanent Injunction Case

On October 8, 2014, the Massachusetts Appeals Court handed down its decision in Great Woods, Inc. v. Clemmey, Docket No. 13-P-1817, through a Memorandum and Order Pursuant to Rule 1:28. In that unpublished decision, the Appeals Court panel (Kantrowitz, Grainger & Hanlon, JJ.) vacated the Order of the Middlesex Superior Court, Tuttman, J., (1) clarifying that a 1996 permanent injunction remained in full force and effect, notwithstanding the fact that its beneficiary, Plaintiff, Great Woods, Inc., no longer exists; and (2) denying relief to Clemmey under Mass. R. Civ. P. 60(b)(5).

ANR PLAN ENDORSEMENT: WHEN A PLANNING BOARD (TRIES TO) APPEAL ITSELF

The recent Land Court case of Georgetown Planning Bd. v. Georgetown Planning Bd., 2014 WL 3555971, 13 MISC 480712 (KCL) (Mass. Land. Ct. 2014), is perhaps one of the more "creative" ways around trying to undo a constructive endorsement of an ANR (Approval Not Required) plan. It ultimately was also not successful.

SUBDIVISION CONTROL LAW - REMEDIES FOR INNOCENT PURCHASERS OF UNAPPROVED SUBDIVISION LOTS

In 1953, Massachusetts enacted what is commonly referred to as the "Subdivision Control Law", which is codified at G.L. c. 41, §§ 81K-81GG. The law was enacted for the purpose of

ANR Plans: Public Ways, Ways in Existence & Adequate Access

As most Massachusetts residents and land use attorneys know, new residential construction is often met with a host of challenges and opposition. This is certainly the situation in many of the more desirable locations where developable land is seemingly at a premium, including, no less, Nantucket, where even a small ANR (Approval Not Required) project recently faced abutter opposition.

Exceptions and Reservations in Deeds

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?

Derelict Fee Statute - Exceptions and Reservations

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.

DERELICT FEE STATUTE - BASICS

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).

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