Robert Nislick If you are involved in a lawsuit that has been filed in the Massachusetts Land Court, it is common for the judge to come to your property to take a view. This is an opportunity for the judge to see with his or her own eyes what the parties are fighting about.
For example, the judge may come and look at a fence that one party argues entitles her to title by adverse possession. Alternatively, the parties may be litigating over a way that one person argues he has the right to pave. Perhaps it might be a path or a trail that someone alleges they have the right to walk or ride on. Maybe the case involves an encroachment that someone alleges is a trespass and wants removed.
The Land Court judge assigned to your case can take a view at any point during the case. The judge has discretion “to take a view of the premises or place in question or any property matter or thing relative to the case.” Mass. G. Evid. § 1109 (a) (1). The court will often schedule a view on the morning of the first day of trial. Sometimes, however, the judge may come to the property at the start of a case. This may happen if one party is seeking a preliminary injunction at the time they have filed the complaint. Occasionally, a party will seek an injunction several years into a case, and the judge may decide to view the property then. It is also possible that the judge may take a view more than once during the course of a case.
The judge will not come to the property and look around unannounced. This court event is always scheduled in advance for a time and date that is mutually convenient for the parties and their attorneys. Before the view, it is important to discuss with your attorney what will happen at the view and how to behave at the view.
Most importantly, the parties themselves should not speak to the judge, except in the rare situation when the judge says that a party can speak directly. Right before the view begins, each party should stand on their own property with their attorney. The judge will usually arrive by himself or herself, but sometimes a clerk will come along. The attorneys will exchange pleasantries with the judge and each other.
The judge will address the lawyers and the parties and essentially communicate that the court is here to take a view. The judge will invite each attorney to point out various features that he or she wants the court to see. “Counsel may point out the essential features of the place or thing that is the subject of the view, but no comment or discussion is permitted. No witnesses are heard.” Mass. G. Evid. § 1109 (b).
The judge does not want to hear directly from the parties at the view. The judge may say that he or she is not taking any testimony now, and that the view is not evidence. Rather, the parties will have an opportunity to testify in court about the appearance of the premises. Additionally, the judge may tell the attorneys not to make arguments at the view, but rather to save it until everyone is in the courtroom.
The judge will likely tell everyone that the parties are allowed to communicate with their attorneys at the view. If the client wants his attorney to point something out, then the client can whisper to his attorney, and the attorney can point it out to the judge.
At the conclusion of the view, the judge may ask the attorneys whether any party has an objection to anything that occurred at the view, and likely there will be none. Then, if the view was taken on the morning of the first day of trial, everyone will get into their cars and drive to court. Most of the time, the trial will be held at the Land Court, 3 Pemberton Square, Boston. It is not uncommon, however, for the first day of trial to be held in the courthouse closest to the property. Trying the case in a location other than Boston is actually kind of fun for the attorneys and presumably for the judge as well.
If your case is in Superior Court, much of the same will apply, but perhaps with a few differences. Real estate disputes are just one of many types of cases that the Superior Court hears. Accordingly, the Superior Court judge may not plan to take a view as a matter of course. Counsel should anticipate having to file a motion to ask the court to view the property, and this is best done by joint motion, and discussed in advance at a pretrial conference. The Superior Court judge should be just as willing to see the property as a Land Court judge would be. In the less likely event that your real estate dispute will be tried to a jury, then transportation would have to be provided to the jurors, and that brings with it a lot of additional complications and expense.
“When a [judge or] jury takes a view it goes to the place where the main event involved in the trial occurred in order that the jurors may inspect the land . . . or the other crucial thing about which will centre a considerable part of the testimony. Its chief purpose is to enable the [judge or] jury to understand better the testimony which has or may be introduced. . . . A view often dispenses with the necessity of detailed description by plan or word of mouth. Inevitably that which the [judge or] jury see on a view will be utilized in reaching a verdict.” Commonwealth v. Dascalakis, 246 Mass. 12, 29 (1923).
“There is no valid objection to a judge taking such a view upon his own motion, or at the request of either party, if he notifies the parties that he proposes to take such view and deems it would be of assistance to understand better the testimony which has been or may be presented. It is a matter resting within the judicial discretion of the trial judge.” Sargeant v. Traverse Building Trust, 267 Mass. 490, 495 (1929).
“Observations made by . . . the judge on a view may be used by the finder of fact in making a decision.” Mass. G. Evid. § 1109 (c). The decision will likely state that the judge took a view, and summarize what the court saw at the view, and may rely on what the court saw in deciding the case. “A view is not technically evidence and subject to all the principles applicable to evidence in the technical sense. Nevertheless, it has been said that a view inevitably has the effect of evidence, and information properly acquired upon a view may properly be treated as evidence in the case.” Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App Ct. 626, 629 n.5 (2018) (citations and quotations omitted).
About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk of the Land Court. For more information, contact him at (508) 405-1238, or by e-mail.