The Surveyor’s Right to Enter Land in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. Suppose that you are in the midst of a dispute with your neighbor concerning your boundary line. Perhaps your neighbor’s shed encroaches on your property. Maybe you have fenced your neighbor off from his land for more than twenty years, and you are contemplating filing an action to seek title to the land by adverse possession.

In any event, you have decided to hire a professional land surveyor to locate and monument the property boundaries. Quite possibly, the surveyor will need to enter onto your neighbor’s land in order to perform the survey. Your neighbor may not be happy about this. He may allege that the surveyor is trespassing.

Does the surveyor have the right to enter your neighbor’s property? General Laws c. 266, § 120C, states:

“Whenever a land surveyor registered under chapter one hundred and twelve deems it reasonably necessary to enter upon adjoining lands to make surveys of any description included under “Practice of land surveying”, as defined in section eighty-one D of said chapter one hundred and twelve, for any private person, excluding any public authority, public utility or railroad, the land surveyor or his authorized agents or employees may, after reasonable notice, enter upon lands, waters and premises, not including buildings, in the commonwealth, within a reasonable distance from the property line of the land being surveyed, and such entry shall not be deemed a trespass. Nothing in this act shall relieve a land surveyor of liability for damage caused by entry to adjoining property, by himself or his agents or employees.”

G. L. c. 266, § 120C.

Essentially, so long as the landowner, his surveyor, or his lawyer, provides reasonable notice to the neighbor, then the surveyor can enter onto the neighbor’s land, near the property line, and the entry will not be a trespass. If you have received a letter stating that your neighbor’s surveyor needs to enter your land in order to make the survey, it would most likely be prudent to consent to the entry.

In one case involving a dispute over the use of an easement allowing the plaintiffs to traverse certain property of the defendant, utilizing a set of stairs to gain access to a local beach, the plaintiffs sought permission of the defendant to have their surveyor enter the defendant’s property for purposes of determining the feasible location and design for new stairs. When the defendant denied the plaintiffs’ surveyor permission to enter the property, the plaintiffs sought, and the Land Court entered a preliminary injunction which provided the surveyor with reasonable access to the defendant’s land.

In another case, the Land Court ordered that if the surveyor had to enter the boundaries of the defendants’ property in order to complete its field work, the surveyor could do so without hindrance, provided reasonable notice was given in accordance with G. L. c. 266, § 120C, and that violations would subject the parties to sanctions of $250.00 per incident.

Let’s say that you have already had your property surveyed. You staked or placed boundary markers on your land. To your dismay, your neighbor removes the stakes or boundary markers. Such conduct may entitle you to seek injunctive relief and/or money damages based on trespass.

In another case, the Supreme Judicial Court affirmed a permanent injunction which enjoined the defendants from interfering with any registered land surveyor even if the surveyor on the defendants’ property, and also from touching, altering, or interfering with any boundary marker or surveyor’s marker or any object that appears to be such a marker on or within twenty feet of the plaintiff’s property, even if it is on or believed to be on the defendants’ property. See Haufler v. Zotos, 446 Mass. 489, 508 n.35 (2006).

Additionally, under G. L. c. 266, § 94, the destruction of a boundary marker may constitute a criminal act. The statute states in pertinent part:

“Whoever wilfully, intentionally and without right breaks down, injures, removes or destroys a monument erected for the purpose of designating the boundaries of a . . . tract or lot of land, . . . shall be punished by imprisonment for not more than six months or by a fine of not more than two hundred dollars. Any person convicted under the provisions of this section shall, in addition to any imprisonment or fine, make restitution.”

G. L. c. 266, § 94.

If you need an attorney to represent you concerning a boundary line dispute, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Obtaining a Variance or Special Permit in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. You have a project in mind for improving your property. Perhaps you would like to build an addition to your home. For example, Alison wants to bump the front door out so it is a little closer to the street, and build a nice new entryway, closet, and mudroom in that space. Bill wants to build a detached three-car garage behind his house, and add a second floor that will be the perfect man cave.

The homeowners talk to their contractor, get their plans together, and submit a building permit application. The local building commissioner will review the application. Among other things, the building commissioner will look to see whether the project that the homeowners have applied to build complies with the town’s zoning by-laws. He will look to see whether the use applied for is allowed as-of-right. “An as-of-right use refers to a use that is allowed without the need for a special permit, use variance, amendment, waiver, and/or other discretionary approval.” See Framingham Zoning By-Law, Section I.E. at 7. He will also look to see whether the proposed project will comply with the table of dimensional requirements.

If not, then the building commissioner will deny building permit application. “He shall issue no building permit for the construction of any building or structure which would be in violation of any of the provisions of this Bylaw.” See, e.g., Town of Walpole Zoning Bylaws, Section 3.1.A. The building commissioner may also advise the applicant in writing as to the sections of the zoning by-law with which the application and plans are not in compliance. See e.g., Framingham Zoning By-Law, Section VI.G. The building commissioner may tell you that you need a variance or a special permit. See G. L. c. 40A, §§ 9, 10.

At this point, the homeowner or landowner will have to apply to the local zoning board of appeals for zoning relief. It would be worthwhile to retain counsel at this point. Every city and town has its own procedures for applying for a variance or special permit. Detailed instructions can often be found online, and any applicant would be well advised to follow the town’s application procedures carefully. For example, information about how to seek zoning relief in Framingham, Natick, Marlborough, Southborough, and Wellesley, can be found by clicking the links.

“A board of appeals shall have the following powers: . . . (2) To hear and decide applications for special permits upon which the board is empowered to act under said ordinance or by-laws. (3) To hear and decide petitions for variances as set forth in section ten.” G. L. c. 40A, § 14.

The Zoning Act, G. L. c. 40A, sets forth very detailed requirements which are binding on both boards and applicants. For example, the statute covers many complex topics including exemptions, changes to zoning by-laws, pre-existing nonconforming structures and uses, enforcement of zoning regulations, appeals, notice, timing, and judicial review.

Additionally, the statute establishes substantive and procedural requirements governing special permits and variances. There are several different types of special permit, but primarily, G. L. c. 40A, § 9, states in pertinent part: “Zoning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use.” See G. L. c. 40A, § 9.

The standard for obtaining a variance is more stringent. In order to obtain a variance, G. L. c. 40A, § 10, requires the applicant to demonstrate that, and the permit granting authority must specifically find that, “owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.” See G. L. c. 40A, § 10.

For non-attorney homeowners who simply want to do something nice to improve their house, it can feel very intimidating to appear before a board to explain the project, and be told that they have to demonstrate how they satisfy the requirements for obtaining a variance. There will often be a disconnect between the board and the applicant. The board is not necessarily trying to give the applicant a hard time. Still, the applicant feels like a deer in the headlights, not understanding the board’s questions or how to answer them to the board’s satisfaction.

Again, it would be wise to hire a lawyer who can walk you through the process, and develop arguments in favor of the zoning relief you need, and present your case to the members of the zoning board. Counsel may also help you to modify your plans so that you can avoid the necessity for obtaining zoning relief, and doing so may prove to be a better course of action under certain circumstances.

If you need an attorney to represent you concerning a zoning matter, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Trustees’ Responsibilities and Unit Owners’ Right of Access to Condominium Books and Records in Massachusetts

By Robert Nislick

When a dispute starts to arise between and a unit owner and a board of condominium trustees, the unit owner may ask to review the financial records of the condominium. The unit owner may suspect that the trustees are expending money wastefully or improperly.

What records must the condominium trustees maintain? What rights does the unit owner have to access the books and records of the condominium? How can the condominium trust satisfy its obligations to the unit owner?

Pursuant to G. L. c. 183A, § 10 (c), the organization of unit owners or the condominium’s managing agent shall keep a complete copy of: (1) the master deed, (2) the by-laws, (3) the minute book, to the extent such minutes are kept, and (4) financial records, including and relating to: (i) all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements, (ii) the replacement reserve fund or any other funds, (iii) audits, reviews, accounting statements, and financial reports relating to the condominium’s finances, (iv) contracts for work to be performed for or services to be provided, and (v) all current insurance policies, or policies which name the organization as insured or obligee. The statute requires that these records be kept in an up-to-date manner within the commonwealth.

Additionally, any unit owner and first mortgagee has a right of reasonable inspection of these records during regular business hours. Access to said records includes the right to photocopy said records at the expense of the person or entity making the request.

If a unit owner requests to inspect the books and records of the condominium, the trustees or the property manager should be willing to set up an appointment for the unit owner to view the records, or photocopy the records and provide them to the unit owner. The association risks getting sued by the unit owner if the trustees fail or refuse to provide reasonable access to these records. Even if it seems like an inconvenience, the condominium association should make every effort to comply with the unit owner’s request in a timely and efficient manner.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

Land Use Restrictions in Massachusetts

By Robert Nislick

You are a Massachusetts landowner, possibly a homeowner in a residential subdivision. When the developer planned your community, it may have for example, sought to impose a set of building restrictions or restrictive covenants, for the stated purpose of protecting the value, attractiveness and pleasant living quality of the lots within the subdivision.

In particular during the building and marketing phase of the community, the real estate developer may have considered it important to maintain a degree of control over how homebuyers in the neighborhood could use or make changes to their property.

Let’s say you have purchased a home in such a subdivision. Your deed will state the names of the seller and buyer, the consideration paid, and contain a description of the property. Your deed may also contain language that states that the premises are conveyed subject to a certain declaration of building restrictions.   If so, your deed should also provide a reference to the book and page where the document imposing the restrictions is recorded in the registry of deeds.

Anyone who is contemplating buying land subject to a set of restrictions or covenants or easements should review those instruments carefully and also seek the advice of a competent attorney, in order to fully understand what limitations, if any, have been imposed on the use of the property.

Once you own your property, at some point, you may find that a neighbor is doing something on his land that may be in violation of a restriction. You want to compel this neighbor to stop. Or perhaps, someone is accusing you of doing something on your land that may be in violation of the restrictions, and you need to defend against such a claim and ensure your ability to use your property as you see fit.

A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. Labounty v. Vickers, 352 Mass. 337, 347 (1967). Restrictions on land are disfavored and doubts concerning the rights of use of an easement are to be resolved in favor of freedom of land from servitude. Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014). Restrictions in a deed are to be strictly construed against the party seeking to enforce those restrictions. Walker v. Gross, 362 Mass. 703, 706 (1972).

Massachusetts cases interpreting the restrictions statutes, G. L. c. 184, §§ 26-30, make it difficult to enforce land use restrictions. Accordingly, great care must be taken to draft them correctly. Under certain circumstances, courts will even refuse to enforce a land use restriction due to lack of precision in drafting, even if the parties’ intent is otherwise clear.

Land use restrictions are distinguishable in part from condominium master deed restrictions, the latter of which are generally construed more liberally in favor of the party seeking enforcement. However, in a recent case, Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct. 713 (2015), the Appeals Court ruled that a condominium unit owner did not violate an affordable housing restriction which required him to maintain the unit as his principal residence, and which prohibited him from leasing his unit for business or investment purposes, even though he traveled extensively for work, and even though he had brought in a succession of roommates to defray the costs of the unit. The Court applied the rule that where a person’s right to use his or her own property is involved, any ambiguity in an asserted restriction should be construed in favor of the freedom of the property from that restriction. See Johnson v. Keith, 368 Mass. 316, 320 (1975).

If you are involved in a dispute concerning a land use restriction or a condominium restriction, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

Condominium Restrictions, By-Laws, and Rules and Regulations in Massachusetts

By Robert Nislick

As part of a condominium board’s authority to manage and control the common areas of a condominium, the trustees often adopt by-laws and rules and regulations which govern how the unit owners can use the common areas and their units.

Typical by-laws and rules and regulations cover topics such as parking, pets, personal property, and noise, to name a few.

Unit owners are obligated to comply with the condominium’s by-laws and rules and regulations. “Each unit owner shall comply with the by-laws and with any administrative rules and regulations adopted pursuant thereto, as either of the same may be amended from time to time . . . .” G. L c. 183A, § 4(3).

A board has the authority to enforce the by-laws and rules and regulations by levying fines. “Such corporation, trust or association shall have, among its other powers, the following rights and powers:—(5) To . . . levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.” G. L c. 183A, § 10 (b) (5).

Additionally, if the trust incurs expenses as a result of the unit owner’s failure to abide by the by-laws and rules and regulations, it can assess that expense against him or her. “If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by the . . . by-laws, restrictions, rules or regulations, . . . the organization of unit owners may assess that expense exclusively against the unit owner and such assessment shall constitute a lien against that unit . . . and such assessment shall be enforceable as a common expense assessment under this chapter.” G. L c. 183A, § 6 (a) (ii).

Let’s say the board has adopted a certain by-law or rule and regulation, and a unit owner wants to challenge it. The unit owner argues that the by-law or rule is invalid. How will a court review the by-law or rule?

In Johnson v. Keith, 368 Mass. 316 (1975), a condominium unit owner sought a declaration against a board of managers of a condominium that a rule prohibiting the keeping of animals in condominium units or the common areas was not valid and enforceable against her with respect to her dog.

Such a rule was not enforceable against the unit owner in this case because it sought to regulate the unit owner’s conduct in her unit. The Court stated: “[B]y statute administrative rules and regulations may govern the details of the use and operation of common areas and facilities. G. L. c. 183A, Section 11 (d).” Johnson v. Keith, 368 Mass. 316, 319 (1975) (emphasis added). The rule at issue purported “to regulate the keeping of animals not only in common areas but also ‘in any Unit.’ Thus as an administrative rule or regulation [it] undertakes to regulate conduct in individual units without statutory authorization.” Id.

The Johnson Court made a key distinction between by-laws, on the one hand, and rules and regulations, on the other. Although the condominium trustees argued that the rule was or should be treated as a by-law, the Court disagreed, in part because the procedures set forth in the by-laws for adopting by-laws had not been followed.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (d) The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.” G. L. c. 183A, § 11 (d).

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (e) Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.” G. L. c. 183A, § 11 (e).

The Johnson Court cited both of these statutes, and they should be instructive on the need for a condominium board to follow the by-laws themselves when adopting a new by-law or rule or regulation.

In another case, which also involved a rule concerning the keeping of a pet in a unit, the Court interpreted G. L. c. 183, § 11 (d), as meaning that, “rules and regulations may only apply to common areas of the building and not to individual units.” Trustees of the Beacon on the Charles Condominium Trust v. Adler, Suffolk Superior Court Civil Action No. SUCV2010-00793.

Adler underscores the need to analyze whether by-laws or rules and regulations which purport to restrict conduct within a unit have been unambiguously incorporated into the by-laws, and also that a condominium that seeks to amend its by-laws and rules should follow the proper procedure. The decision notes that: “Mere statements of incorporation of rules and regulations are not sufficiently unambiguous.” That particular condominium’s by-laws required that a by-law amendment required approval of at least a 75% beneficial interest in the trust, and that rules and regulations could be amended by the trustees.

In Noble v. Murphy, 34 Mass. App. Ct. 452 (1993), a condominium trust filed suit against unit owners to compel the removal of two dogs from a unit. An actual by-law, not just a rule, banned all pets from units and common areas. The unit owners counterclaimed and challenged the validity of the pet restriction. The Court ordered the removal of the dogs. In analyzing the by-law, the Noble Court noted that, “the most common standard of review of condominium use restrictions is equitable reasonableness.” See Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993).

“[T]he test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.” Id. The Noble Court highlighted that a condominium has authority to act concerning matters “that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” See id.

In Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002), a former school building was converted into a 71-unit residential condominium. The first floor of the building was a unit which was operated by the town of Lexington as a senior center. On various occasions, when large numbers of people visited the senior center, there were not enough available parking spaces for the residential unit owners. To deal with this problem, the condominium adopted a rule setting aside parking spots for unit owners only. The Court adopted the reasonableness standard and held that where the “parking rule restricts use of the common area parking lot, not use of units . . . the Trustees did not act outside their authority by enforcing the parking rule without first causing it to be incorporated into the Master Deed or By-laws.” See Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002).

In Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530 (1989), a master deed restriction provided that each of the units were intended to be solely for residential dwelling purposes. The condominium trust sought to enjoin unit owners who had been operating a family day care in their unit. Where the master deed specified that units could be used “solely” for residential purposes, the Court stated that the condominium trust was entitled to prevent the operation of a family day care in a residential unit. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 535 (1989).

In Franklin v. Spadafora, 388 Mass. 764 (1983), a by-law limiting to two the number of units which may be owned by any one person was not an unreasonable restraint on alienation, and did not deny the unit owner equal protection of the laws or due process of law. The Franklin Court held: “If a by-law amendment serves a legitimate purpose, and if the means the condominium association adopted are rationally related to the achievement of that purpose, the amendment will withstand constitutional challenge.” Franklin v. Spadafora, 388 Mass. 764, 774 (1983). The Court noted that: “Reasonable restrictions concerning use, occupancy, and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.” Id. at 772.

In Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728 (2011), held that while rules are reviewed for “equitable reasonableness”, “such regulations are subject to invalidation if they violate a right guaranteed by ‘any fundamental public policy or constitutional provision.’” See Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728, 730 (2011), quoting from Noble, 34 Mass. App. Ct. at 760.

The Preu Court held that the First Amendment to the United States Constitution applies to a claim that a unit owner’s speech and expressive conduct constitutes a violation of “‘the requirements of the master deed, trust, by-laws, restrictions, rules or regulations [of the condominium], or . . . misconduct’ within the meaning of G. L. c. 183A, § 6.” See Preu, 80 Mass. App. Ct. at 728.

In Preu, the unit owner placed dog feces in a common area, placed a fan in a common area, wedged open fire doors that should have been closed, and closed doors that should have been open. The Court determined that this conduct violated various by-laws and rules of the condominium, and constituted misconduct.

Additionally, the unit owner also had posted signs in the trash area regarding the cleanliness of the common areas, and left a note on a neighbor’s door. A superior court judge ruled that these forms of communication were pure speech, conduct that was protected by the First Amendment, and if a condominium by-law were read to prohibit this conduct, it was not “equitably reasonable.”

The Court noted that, “a condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which those owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property.” See Preu, 80 Mass. App. Ct. at 732.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

The Rights of an Easement Holder to Improve a Right of Way or Paper Street in Massachusetts

By Robert Nislick

You are a Massachusetts homeowner. Your property abuts a street that may never have been paved. It could be a dirt road that is hard to navigate in wet weather and dusty and bumpy when it is dry.

Alternatively, your property abuts a street that exists only on paper. The way exists in a deed or on a plan. But in reality, no road has ever been built, and the area is completely covered with trees.

It is possible that you own land that is set back from a public way. In order to get to the property, you need to cross over a paper street, which is actually someone else’s yard.

Whatever the situation on the ground has been in the past, you want to improve the right of way. Assuming you have rights to use this way, what rights do you have as an easement holder to use and improve this right of way or paper street?

A holder of a right of way typically has the right to make it passable and usable for its entire width. See Guillet v. Livernois, 297 Mass. 337, 340 (1937). The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. The right exists even more clearly where without improvement the way is impassable and useless. See id.

Where an easement grants the “right to pass and repass” that right has been found to include all rights reasonably incidental to the enjoyment of the right to pass, including the right to make reasonable repairs and improvements to the right of way. See Farber v. Chatham Conservation Found., 56 Mass. App. Ct. 584, 589 (2002).

“Such reasonable repairs include paving the easement and such other improvements as would be consistent with principles of safety.” Barlow v. Chongris & Sons, Inc., 2 LCR 22, 23 (1994), aff’d, 38 Mass. App. Ct. 297 (1995). “Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement.” Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981).

Additionally, G. L. c. 187, § 5, states in part: “”The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways”. G. L. c. 187, § 5.

“Courts have found that private utilities fall within a broad spectrum of rights given to easement holders by G. L. c. 187 § 5.” Shawkemo Ducklands LLC v. Nantucket Planning Board, Land Court Miscellaneous Case No. 07 MISC 355356 (AHS), slip op. at 52 (Sands, J.) (Oct. 26, 2012). The installation of private septic systems and drainage systems have been deemed permissible pursuant to the statute.

Additionally, the statute applies to persons hold easement rights not only by deed, but also “when rights in a way arise by implication or necessity based on the parties intent,” and also to “an easement by estoppel.” See Post v. McHugh, 76 Mass. App. Ct. 200, 206 (2010).

About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk at the Land Court.  For more information, contact him at (508) 405-1238, or by e-mail.

The Doctrine of Tacking in Massachusetts Adverse Possession Claims

By Robert Nislick

In order for one Massachusetts landowner to establish title by adverse possession to land owned of record by another, the claimant must prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Frequently, a person who is adversely possessing another’s land may not be able to establish that he personally has used his neighbor’s land for twenty years. This might be because the adverse possessor only recently purchased his property. Alternatively, it might be because he inherited the property he now owns.

The twenty-year requirement is strictly construed. For example, in one case, the court ruled that a claim of adverse possession that continued for “nineteen years, eleven months, and five days” was insufficient, and did not bar the record owner from retaking possession of a disputed strip of land. See Hewitt v. Peterson, 253 Mass. 92, 93-94 (1925).

“[A]lthough the time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58 (1st Cir. 2004).

Even if the claimant has not personally used the land for twenty years, he may satisfy the requirement by tacking on “several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” See Ryan v. Stavros, 348 Mass. 251, 264 (1964). Privity exists when there is “some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one.” See id.

For example, the case of AM Properties, LLC v. J&W Summit Ave, LLC, Land Court Miscellaneous Case No. 13 MISC 479776 (AHS), (Sands, J.) (Jul. 2, 2015), involved a small strip of land located along a common boundary between the parties’ properties and two passageways to access the strip. The plaintiff purchased its property in 1999 from a trust, which had purchased the property in 1934. The trust had leased the property to a tenant in August 1993. The tenant soon began improving the strip on the defendant’s property.

The court noted that privity of estate exists between lessor and lessee. Additionally, the court noted that, “the adverse possession of the tenant maybe tacked to that of the landlord”. See Holmes v. Turner’s Falls Co., 150 Mass. 535, 547 (1890). Therefore, the court found that plaintiff could tack its use of the strip onto that of the trust for purposes of establishing adverse possession. Accordingly, even though plaintiff itself was adversely possessing defendant’s strip for less than twenty years, it was able to add on, or tack, its predecessor’s tenant’s use onto its claim.

In Perry v. Nemira, Land Court Miscellaneous Case No. 11 MISC 457157 (AHS), (Sands, J.) (Jan. 15, 2015), plaintiff acquired title to his property in early 1996. Plaintiff was required to demonstrate adverse use since 1991. Plaintiff proffered no evidence to suggest that his predecessors ever adversely possessed the disputed area. Moreover, plaintiff’s predecessor in title had essentially abandoned the property in late 1994 when she was incarcerated. Thus, the court found that even if the plaintiff’s predecessor intended to adversely possess the disputed area, there was a break in adverse use from late 1994 to early 1996. This prevented plaintiff from establishing continuous adverse use for the requisite twenty-year period.

In Giombetti Clue Props., LLC v. DiFronzo, Land Court Miscellaneous Case No. 10 MISC 443972 (HMG), (Grossman, J.) (Nov. 7, 2014), plaintiff sought a prescriptive easement over a portion of a paved driveway that encroached onto the neighboring property. The defendant argued that plaintiff’s claims failed because one of plaintiff’s predecessors sought permission to pave the driveway. The court noted that the plaintiff could not seek to tack its own adverse use onto a period of adverse use by an earlier predecessor, thereby “leap-frogging” over a period of permissive use.

If you have a claim or need to defend against a claim for adverse possession or prescriptive easement, contact Robert Nislick, a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Options to Purchase Real Estate in Massachusetts

By Robert Nislick

You are a Massachusetts commercial tenant or landlord. The lease contains a provision that gives the tenant an option to purchase the leased premises from the landlord.

An option to purchase real property is a “contract by which an owner of realty enters an agreement with another allowing the latter to buy the property at a specified price within a specified time, or within a reasonable time in the future, but without imposing an obligation to purchase upon the person to whom it is given.” Black’s Law Dictionary 1121 (7th ed. 1999).

“An option should specify the period and the manner in which it may be exercised by the buyer, and in addition should contain, or incorporate a separate agreement containing, all of the same provisions as are appropriate to a purchase and sale agreement.” E.C. Mendler, Massachusetts Conveyancer’s Handbook § 2.3 at 45 (3rd ed. 1984).

Suppose that a landlord and tenant have negotiated a long-term lease which provides the tenant an option to purchase the building. Since the inception of the lease, property values have increased substantially. The tenant wants to buy the property from the landlord. The landlord does not want to sell the property to the tenant. The landlord would prefer to sell the property to someone else for more money.

What is the tenant’s remedy? The tenant can file a lawsuit seeking specific performance against the landlord. “Specific performance is a proper remedy to enforce a valid option to purchase real property.” Greenfield Country Estates Tenants Ass’n, Inc. v. Deep, 423 Mass. 81, 89 (1996).

What are the landlord’s defenses? The landlord will want to try to demonstrate that the tenant failed to properly exercise the option in the time specified and in the manner required by the lease. It is possible that the option may also contain a clause that says the option is not valid if the tenant is in default of the lease. The landlord may also try to argue that the language in the option is too indefinite to be enforced.

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Frequently Asked Questions About Tree Law in Massachusetts

By Robert Nislick

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Massachusetts homeowners frequently have questions about the ownership of trees on their property and the right to cut overhanging branches from a neighbor’s tree.

Here are some of those questions, with answers, based on Massachusetts law.

Question:        If a tree trunk is wholly on Alan’s property, who owns the tree?

Answer:          Alan owns the tree. “Where the trunk of a tree stands wholly on the land of one proprietor, he has been deemed the owner of the entire tree”. Levine v. Black, 312 Mass. 242, 243 (1942).

Question:        Alan and Bill are neighbors. The branches of Alan’s tree extend over the property line onto Bill’s side. Can Bill cut the branches of Alan’s tree?

Answer:          Bill can cut the branches of Alan’s tree to the extent they are on Bill’s property. “[T]here is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises.” Levine, 312 Mass. at 243. “Notwithstanding the legal ownership of the property, the overhanging branches of the plaintiff’s tree can be cut to the property line by the abutter.” Macero v. Busconi Corp., 12 Mass. L. Rptr. 521 (2000).

Question:        Does Bill have to ask Alan’s permission before cutting the overhanging branches?

Answer:          No. “His remedy is in his own hands.” Michalson v. Nutting, 275 Mass. 232, 234 (1931). “Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property.” Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014). However, even though he doesn’t have to, Bill may want to consider discussing it with Alan beforehand so as to maintain neighborly relations between them.

Question:        Carol and Debbie are neighbors. The trunk of a tree sits on both properties. Who owns the tree?

Answer:          Both Carol and Debbie have legal interests in the tree. Where, “the trunk stands across the boundary line . . . [i]t has generally been said that under these circumstances both parties own the whole tree as tenants in common.” Levine, 312 Mass. at 243.

Question:        What rights do Carol and Debbie have to trim overhanging branches?

Answer:          They generally have the same rights that anyone has to trim overhanging branches. “[I]t is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.” Levine, 312 Mass. at 244.

Question:        A tree straddles the property line of Edward and Frank. Edward wants to remove it completely. Can he?

Answer:          Most likely not. “Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.” Lasell College v. Fox, 53 Mass. App. Ct. 1103 (2001). The only way in which Edward may be able to remove such a tree in its entirety is if the tree constituted a nuisance. See Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014).

Question:        George and Harold are neighbors. A large healthy willow tree on George’s property overhangs Harold’s driveway. Leaves, sap, and branches fall onto Harold’s driveway. Harold slips and falls on the sap and leaves that fell on his driveway from George’s tree. Is George liable for Harold’s injuries?

Answer:          No. The willow will not weep for Harold. She should have cut the overhanging branches her property so as to prevent herself from getting injured by George’s tree. George is not liable. “The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. . . . To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable.” Ponte v. DaSilva, 388 Mass. 1008 (1983).

Question:        Irene and Janet are neighbors. A large poplar tree on Janet’s property is growing so much that its roots are extending onto Irene’s property. The roots of Janet’s tree have caused the cement under Irene’s house to crack and crumble, potentially injuring the foundation of Irene’s house. If Irene sues Janet, would the court order Janet to prevent the harm to Irene and compensate Irene for her damages?

Answer:          Probably not. The court would probably deny relief to Irene and rule that she could have and should have exercised her right of self-help to trim the roots that invaded her property before causing damage to it. See Michalson, 275 Mass. at 234.

Question:        Keith wants to grow trees on his entire lot. The shade of the trees is bothering is next door neighbor Larry. What can Larry do about it?

Answer:          Not much. The owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to the neighbor is no violation of his rights. See Michalson, 275 Mass. at 233.

Question:        One day, Larry decides to cut down Keith’s trees, without Keith’s permission. What are Keith’s remedies against Larry?

Answer:          Larry is liable for the tort of trespass to trees. The Massachusetts trespass to trees statute, G. L. c. 242, § 7, provides landowners with a remedy against someone who willfully cuts down someone else’s trees. The wrongdoer shall be liable to the owner for three times the amount of damages, unless he had good reason to believe the land was his own, or he was lawfully authorized to cut the trees. For a detailed analysis, see my companion article Trespass to Trees in Massachusetts.

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.