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.
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).
Real estate taxes, insurance and utilities comprise expenses that we all have come to expect as necessary incidents of property ownership. Many cities and towns in Massachusetts, however, also impose user fees for municipal services, as part of the development process, or on an ongoing basis once properties have been developed. These fees are not always legal.
A recent (unpublished) Rule 1:28 decision, Hancock v. Chambers, 85 Mass. App. Ct. 1106 (2014), reminds both condominium owners and trustees and attorneys of the care that needs to be taken when drafting-and attempting to enforce-condominium trust documents so that they ultimately make operative sense.
A recent Land Court case, while not binding authority, reminds us yet again of how much the forming of a valid contract for the sale of land hinges on the language communicated by and between the parties during the offer and acceptance phase.
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.
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.
Easement agreements are used to address a wide array of issues and interests of landowners including resolving property disputes, clarifying property rights between neighbors or granting new rights of access. Common to all however, is the fact that one person's land will be used by another party or person or sometimes many parties and persons. Right of way agreements that allow others to pass and repass over the land of another often raise questions about the liability of the landowner for loss or injury occurring to the easement holder or third parties who might use the easement-whether with permission or without. What then are the essential duties involved in this relationship and what can be done to mitigate exposure to landowners? As we will see, the relationship between the landowner (the owner of the servient estate) and the easement holder (the owner of the dominant estate) and various third parties is governed by competing legal propositions.