The plaintiff in the case had an express right-of-way easement, provided by deed, over ten feet of the defendants’ property.  The easement contained a paved driveway, which started at the street and extended the full length of the boundary line between the parties’ properties to the back of their lots.  The easement allowed the plaintiff to drive her vehicle from the street and over the driveway to the area behind her house, where her garage and off-street parking area were located.

When the defendants purchased the neighboring property in 2015, they began parking their two vehicles on the front part of the paved easement, bumper to bumper.  In addition, contractors and other invitees to the defendants’ house would also park there.  The plaintiff filed an action in Land Court, seeking a permanent injunction giving her full, unobstructed use of the entire right-of-way at all times, and prohibiting the defendants and their guests from parking on the driveway.

In Massachusetts, a party having the benefit of an express right-of-way, even where the location is specifically defined, does not necessarily have the right to use its entirety.  Unless the language of the easement requires that the full extent of the right-of-way be kept open, the easement holder is entitled only to a convenient way over the area for its proper purpose, not unobstructed use of the whole space.

The question for the Land Court, therefore, was how much of the driveway was needed for convenient access.  Because the right-of-way was expressly on the defendants’ land, the court held that the plaintiff had the right to rely solely on the easement for vehicle access to the rear of her property, without the use of the paved portion of her own property.

After viewing the site, the court found that if one or more vehicles is parked along the driveway, backing out a vehicle from the plaintiff’s parking area requires extensive maneuvering so as not to hit the parked vehicles.  Without any parked vehicles, exiting the driveway could be accomplished in a single back-up maneuver.  As such, the court held that parking even a single car on the easement, even a single car, was an unreasonable interference with the plaintiff’s express easement rights.  The court went on to issue an order permanently enjoining the defendants from parking along the easement or placing any other objects that would obstruct the front portion of the driveway.

If you need legal guidance concerning your shared driveway or easement dispute, contact the Massachusetts real estate attorneys at Pulgini & Norton.  We assist existing and potential homeowners in all areas of residential property law, including adverse possession and easement claims, variance and building permit applications, property tax liens, foreclosure proceedings, and more.  Request a free consultation with an experienced real estate lawyer by calling (781) 843-2200 or completing our website contact form online.

The parties in the case had a decades-long history in the area that began in their childhoods.  The plaintiffs had spent summers in the area with family friends, who were the prior owners of their property.  Beginning in the 1970s, the plaintiffs and their friends would use the entire portion of the beach, as there was no distinction made among the beaches within the layout of the adjacent properties at the time.  Following the death of the prior owner, the plaintiffs’ family acquired the property in 2000.  Thereafter, the plaintiffs and their families used the beaches whenever the weather permitted.

Starting in 2008, the defendants that owned one of the beaches in dispute reportedly posted “no trespassing” signs on the beach and sent no trespassing notices to the plaintiffs.  In 2011, the defendants installed a video surveillance system, which included a camera pointing at the beach.  In addition, the defendants began calling the police when they observed the plaintiffs on the beach.  The plaintiffs subsequently brought a legal action in Land Court to determine the parties’ respective rights in the area beaches, including a second beach belonging to another set of defendants.

The Land Court reviewed the deeds to the parties’ properties and heard testimony at trial.  The court determined that the 1951 deed to the plaintiffs’ property granted an easement to use the beach located on the first defendants’ property.  Although the extent of the beach area was not defined in the deed, the court concluded that the beach included the area from the high-water mark to the water, for the length of the property.  In addition, the court found that the easement contained in the deed to use the beach was unlimited in scope.  Therefore, the plaintiffs were entitled via an express easement to use the first beach for sitting, swimming, walking the shoreline, and engaging in general beach recreation.

With regards to the second beach, the court found that the plaintiffs did not establish that they had a prescriptive easement over the beach.  In Massachusetts, an easement may be created by prescription with the continuous and uninterrupted use of the area for twenty years.  The law also requires clear proof of open, notorious, adverse use for the entire statutory period.  Concluding that the plaintiffs’ use of the second beach was sporadic and intermittent, the court denied the prescriptive easement.

The Massachusetts real estate attorneys at Pulgini & Norton handle a wide-range of residential property matters, including adverse possession claims and quiet title actions.  We can also assist homeowners with building permits, purchase and sale agreements, foreclosure proceedings, and more.  If you are seeking legal advice concerning your home or residential property, schedule a free consultation with one of our experienced attorneys by calling (781) 843-2200 or contacting Pulgini & Norton online.

The area in dispute was a strip of land between the high-water mark and the low water mark along a section of the coast of a peninsula.  The area itself was a salt marsh, covered in tall grass, deep mud, and completely underwater at high tide.  As such, it was unsuitable for use as a beach and enjoyed primarily as an area to look out over to see sunrises, bird migrations, and boats in the bay.

To determine the ownership issues, the Land Court first investigated the history of the initial partition and examined the descriptions contained the original deeds to the parties’ properties.  At one time, all of the land in the peninsula was communally owned by a Native American tribe.  In the mid-1800s, most of the land was partitioned into several tracts, with the exception of the marshland around the coast.  Years later, the marshland was gradually divided, and then subdivided into smaller set-offs.  The set-off descriptions in the deeds allowed the court to find that one of the plaintiffs held record title to part of the disputed area.  The court went on to identify the boundaries and record title locations of the marsh areas owned by the rest of the plaintiffs.

The court next addressed the adverse possession claims of the town and two of the three plaintiffs.  In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty continuous and uninterrupted years prior to the date the action was filed.  The court concluded that the town did not meet its burden of proof to establish adverse possession, despite the town’s claims that it maintained the area as a public wetland, because it did not offer any evidence that it was in actual possession of the land.

The court did rule, however, that one set of plaintiffs held adverse possession title to the area of the marsh over which their dock extends.  The court noted that the area had previously been occupied by a walkway constructed by the prior owner of the plaintiffs’ property in the late 1950s.  The court found that the walkway had remained in place and in continuous active use by the plaintiffs’ predecessors for twenty years prior to 1981, until it fell into disrepair.  As such, they succeeded in establishing their adverse possession claim.

At Pulgini & Norton, our Massachusetts real estate attorneys handle a wide-range of legal matters concerning residential property.  We can provide knowledgeable advice about property tax liens, mortgage re-financing, easement rights, quiet title actions, foreclosure notices, and many other Massachusetts residential real estate transactions.  If you are seeking guidance from an experienced property lawyer, contact Pulgini & Norton online or call our office at (781) 843-2200 and request a free consultation.

The plaintiff and the defendant in the case were two of the five family members who owned a parcel of land.  The property had contained a non-conforming, 800 square foot seasonal cottage built in 1939 by the previous owners.  In June 2011, the cottage was destroyed by a tornado that ripped through the area.  A dispute arose between the plaintiff, who wished to rebuild the cottage, and the defendant, who wished to maintain the property as open land for private conservation and recreational purposes.

The plaintiff nevertheless contacted the local building commissioner to inquire about a building permit for a new single-family residence.  The building commissioner agreed to allow the residence pursuant to an exception for existing structures under the local bylaw.  The decisions issued by the zoning board and Land Court were appealed and the matter subsequently came before the Appeals Court of Massachusetts.

The bylaw at issue allowed for the reconstruction of a non-conforming single-family residence by building permit when the existing structure has insufficient frontage, but complies with all current setback, building coverage, and building height requirements, and the proposed structure will also comply with all current setback, building coverage and building height requirements.  The question for the court was whether the cottage qualified as an existing structure under the bylaw, despite the fact that it was no longer standing.

The appeals court found that the bylaw did not narrow the meaning of “existing” to only structures that presently exist.  Instead, the court reasoned that the bylaw should be construed as encompassing both non-conforming structures that presently exist, as well as structures that once existed at a particular point in time.  More specifically, this includes structures that were already in place when a bylaw was adopted with which the structures did not comply.  The court went on to explain that this interpretation avoided unreasonable results and was in harmony with other provisions of the bylaw.  The appeals court therefore affirmed that the cottage met the requirements of the exception under the bylaw.

The court noted, however, that the Land Court did not address the defendant’s alternative argument concerning abandonment.  The defendant asserted that the owners had abandoned the non-conforming structure as a matter of law when they made no effort to reconstruct it for nearly five years after it was destroyed by tornado.  The appeals court therefore remanded the matter back to Land Court for further proceedings.

The Massachusetts real estate attorneys at Pulgini & Norton can provide legal guidance to help you further your residential property goals.  We represent individuals in home buying and selling transactions, mortgage re-financing, permit and variance applications, property tax liens, and more.  If you need advice regarding a residential real estate matter, request a free consultation with one of our lawyers by calling (781) 843-2200 or contacting Pulgini & Norton online.

The plaintiffs in the case asserted that their right to use the defendant’s driveway was based on a recorded easement, a prescriptive easement, and/or an easement by necessity.  With regard to the plaintiffs’ claim to a recorded easement, the court held that the deed presented in support of their argument was ineffective to create an express easement.  The court explained that, although both parties’ properties were held under common ownership originally, at the time the grantor purported to convey the right of way at issue, he did not own the defendant’s property.  As one cannot convey a property right that one does not own, the court ruled that no express easement was created by deed.

The court next addressed the plaintiffs’ claimed easement by necessity.  In Massachusetts, an easement by necessity requires the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.  The court noted that the deed severing the parties’ properties granted an express easement that provided access to the plaintiff’s property, although one was never constructed.  Nevertheless, the court held that the plaintiffs did not present any additional evidence that access over the defendants’ driveway was reasonably necessary.

The court did find, however, that the plaintiffs established their prescriptive easement claim.  In Massachusetts, a person may acquire a right of way easement over another person’s land with proof that their use was open, notorious, adverse to the owner, and continuous for a period of at least twenty years.  The court ruled that the undisputed evidence demonstrated that the driveway over the defendants’ property had been the sole source of access to the plaintiffs’ property since 1965, and was used by the plaintiffs and the former owners of the plaintiffs’ property and their guests hundreds of times over.  The court went on to explain that any permission allegedly given by the defendants had occurred well after the prior owners of the plaintiffs’ property had been using the driveway for 31 years and had already acquired prescriptive rights over it.  As such, the court entered a judgment that the plaintiffs’ property had the benefit of an easement over the defendants’ driveway.

If you are seeking legal advice for a residential property or easement matter, the Massachusetts real estate lawyers at Pulgini & Norton can help.  We have guided people through home purchase and sale transactions, mortgage financing, building permit applications, local zoning bylaws, and many other situations involving residential property.  Schedule a free consultation to discuss your real estate concerns with a skilled attorney by calling our office at (781) 843-2200 or contacting Pulgini & Norton online.

The prior owner of the plaintiff’s land had received property from the city as part of its “Yard Sale” program.  Through the program, the city conveyed vacant lots to the owners of the abutting property, subject to an open space restriction.  Accordingly, the deed required that the land be used for open space purposes and prohibited construction of new structures on the lot.  The owners of the restricted lots were, however, allowed to build an addition on the house located on their original lot.

When the plaintiff purchased the lot from the prior owner in 2010, the deed conveying the property contained the same building restrictions.  Seeking to remove the restriction, the plaintiff filed an action for a declaratory judgment in Land Court, seeking to remove a restriction placed on her property.  The plaintiff argued that the deed restrictions violated public policy because they imposed an unreasonable restraint on alienation.  The Land Court disagreed and granted summary judgment against the plaintiff; the matter then came before the appeals court.

In Massachusetts, a reasonable restriction on property may be enforced.  The court will consider the following factors in determining whether a restraint is reasonable: (1) the party imposing the restriction has some interest in the property, which is protected by the enforcement of the restriction; (2) the restriction is limited in duration; (3) enforcement of the restriction accomplishes a worthwhile purpose; (4) the prohibited conveyances are unlikely to be employed by the party subject to the restriction; (5) the number of people to whom alienation is prohibited is small.

On appeal, the court agreed with the lower court that the restraint was reasonable.  The court found that the city had an interest in the property, and that the purpose of the open space restriction was to benefit the public and preserve the density of city neighborhoods.  Although the restriction was not limited in duration, the parties could negotiate a different agreement.  The court also noted that the restriction did not prohibit all building on the property, in that it allowed the plaintiff to construct an addition to her home.  Accordingly, after considering the evidence in light of the legal factors, the court ruled that the restraint imposed by the deed restriction was reasonable.

At Pulgini & Norton, we can help you avoid setbacks as you work towards your real estate objectives.  Our Massachusetts property rights lawyers assist people in a range of residential real estate matters, such as home purchase and sale agreements, land use regulations, restrictive covenants, easements, title actions, foreclosure proceedings, and more.  Schedule a free consultation with a real estate attorney at Pulgini & Norton by calling (781) 843-2200 or contacting us online.

The plaintiffs in the case had reportedly applied for a building permit in 2008 to construct a single-family residence on their land.  The town building commissioner denied that permit and, after exhausting their appeals with the local zoning board and Massachusetts Land Court, the plaintiffs revised their plans.  In 2018, they reapplied for a permit using the revised plans.  When the 2018 permit was denied for a second time, the plaintiffs once again sought review of the decision in the Land Court.

Under the local zoning bylaws, a building or structure in a residential district must be at least 60 feet from the street.  There is an exception, however, if there is a principal building within 500 feet of, and on each side, of the proposed building.  In such cases, the proposed building may extend as far as the neighboring buildings.

In the case, one of the lots immediately abutting the plaintiffs’ property contained a building that was within 500 feet of the plaintiffs’ proposed house.  The other lot abutting the plaintiffs’ property, however, was vacant.  The plaintiffs sought a building permit to construct their house less than 60 feet from the two streets abutting their property.  They argued that the proposed building fell under the exception to the bylaw’s setback requirement.

In denying the plaintiffs’ building permit, the local zoning board reasoned that the plaintiffs could only meet the exception provided under the bylaw if both neighboring lots had a building on it.  Because abutting vacant lot did not contain a principle building, the board ruled that the plaintiffs did not qualify for the exception that would allow them to build closer than 60 feet from the street.  On appeal before the Land Court, the plaintiffs contended that the board’s interpretation was unreasonable, and deprived owners of lots bordered by vacant land from ever benefiting from the exception to the bylaw’s setback requirements.

Ultimately, the Land Court affirmed the interpretation of the zoning board.  The court concluded that the exception provided under the bylaw was framed in terms of distance, i.e., 500 feet of the proposed structure, and that the plaintiffs’ current plans for the house did not meet those requirements.  The court also noted that while it must defer to the local zoning board’s interpretation if it is reasonable, in this case, the court’s interpretation was identical to the board’s.  As such, the Land Court affirmed the zoning board’s decision to deny the building permit.

At Pulgini & Norton, our Massachusetts real estate attorneys can help you address any legal issues concerning your home or residential property.  We assist homeowners and buyers with variance and building permits, local zoning requirements, tax liens, title actions, residential property transfers, and many other real estate matters.  Arrange a free consultation with one of our knowledgeable lawyers by contacting Pulgini & Norton online or calling (781) 843-2200.

The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue.  When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property.  The fence was installed by the previous owner of the defendant’s property.  It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way.  In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.

Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise.  The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way.  The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.

To succeed in on their adverse possession claim, the plaintiffs must prove non-permissive use, which is actual, open, notorious, exclusive and adverse for twenty years.  The Land Court ruled that the plaintiffs provided sufficient evidence to establish their adverse possession claim.  Specifically, the court noted that only the plaintiffs and their tenants use the way for access to the row houses, that only the plaintiffs had plowed snow and maintained the way, and that the fence, which had been in continuous existence since at least 1985, had prevented the defendant and the prior owners of the defendant’s property from using the way.

Insofar as the defendant claimed its right to an easement over the way, the Land Court went on to rule that any such easement rights had been abandoned by the prior owners of the defendant’s property.  In Massachusetts, an easement is extinguished by abandonment through acts that are inconsistent with the continued existence of the easement, and which show an intent to abandon it.  Finding no evidence that the defendant or its predecessors had ever used the way, the court held that the defendant’s easement rights had been extinguished by abandonment.  Consequently, the plaintiffs were successful in their action.

If you are seeking experienced legal representation for a residential real estate matter, the Massachusetts property attorneys at Pulgini & Norton can assist you.  We handle a wide range of real estate issues, from title actions and home closings to mortgage re-financing and foreclosure cases.  Arrange a free consultation with one of our skilled property lawyers by contacting Pulgini & Norton online or calling our office at (781) 843-2200.

The plaintiff in the case purchased her home in 2000.  To the west and south, her property directly abutted an undeveloped, wooded land owned by the defendant.  The west area was a mowed, grassy area, with no permanent improvements.  The south area was largely covered by a paved basketball court, with one permanent post, backboard, and hoop.

The defendant did not dispute that the plaintiff had established the elements of adverse possession over the west and south areas during the 14 years that she has owned her property.  Rather, the question was whether the plaintiff could prove that the prior owner of her property had also met the required elements for the remaining 6 years, in order to establish a 20-year period of adverse possession.

In Massachusetts, title can be acquired by adverse possession only upon proof of non-permissive use, which is actual, open, notorious, exclusive, and adverse for a period of twenty years.  The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.  Fundamentally, the adverse possession test is about the degree of control exercised by the plaintiff.  The elements of an adverse possession claim are met, therefore, where the changes made to the land are considered acts usually and ordinarily associated with ownership.

On appeal, the court concluded that there was sufficient evidence of the prior owner’s use and maintenance of the disputed areas from 1983 until 2000.  Although the prior owner did not use the basketball court on the south area for the preceding 6 years, the court found that the permanent installation of the paved basketball court and hoop, together with regular maintenance of grass perimeter around it, was sufficient to satisfy the actual use requirement of adverse possession.

The court also found that the parties lawn maintenance was sufficient to qualify as actual and open use of the disputed areas, noting that the mowing occurred inside a well-defined, easily identified, tree-lined boundary that did not move or change during the entirety of the 20-year period.  Accordingly, the appeals court affirmed the judgment granting the plaintiff title by adverse possession.

At Pulgini & Norton, our Massachusetts real estate lawyers have the resources to assist homeowners and buyers in advancing their real estate objectives.  We can provide legal advice in all areas of residential real estate law, including adverse possession and easements, title insurance, nonconformity issues, tax liens, mortgage financing and bridge loans, and more.  To arrange a free consultation with one of our experienced real estate attorneys, call Pulgini & Norton at (781) 843-2200 or submit the contact form on our website.

The plaintiffs in the case owned two landlocked parcels of land, with no means to reach it from a public way or public road.  Rather, the only available access to the plaintiffs’ parcels was by using two private ways, which were located on the defendants’ properties.  In their Land Court action, the plaintiffs asserted that they had the benefit of a public right of travel over the defendants’ two private roads.

In Massachusetts, a private way may become a public way by prescription.  There also can be private ways, not dedicated to public use, that are nevertheless open to public use by license or permission of the owner.  Generally, establishing that a private way has become public is more difficult to prove than showing that a private way is open to the public.  The rights allowed in a private way open to the public, however, are much more limited than the easement rights afforded to the public in a public way and a public way by prescription.

For public roads, the public’s easement of travel includes the installation of water and gas pipes, sewers, telephone lines, electricity, police boxes, traffic lights, signs and similar devises, as well as transportation use and ordinary travel.  Conversely, private ways that are open to the public at large are simply for ordinary travel.  Further, the public use of a private way may be terminated at any time at the will of the owner.

The plaintiffs conceded that the evidence was not sufficient to establish that the private ways at issue were public ways by prescription.  Instead, they asserted a claim of a private way open for public use.  To support their claim, the plaintiffs relied on a Massachusetts statute authorizing a city or town to appropriate money for snow and ice removal from private ways open to public use.  The plaintiffs then presented evidence that the town within which the parties’ properties were located had plowed the private ways since at least the late 1970s.  In addition, the town had erected signage and performed maintenance work as well as other road work on the private ways.

The Land Court concluded that the plaintiffs had successfully established that the private ways were private ways open to public use by permission of the owners.  The court noted, however, that such permission was terminable at will, and that the plaintiffs’ rights did not include the right to install utilities.

If you are seeking advice for a legal issue concerning your home or condo, the Massachusetts real estate attorneys at Pulgini & Norton can help.  We assist individuals with residential property matters such as purchase and sale transactions, mortgages and home loan re-financing, variances, zoning laws, and more.  Request a free consultation with one of our experienced real estate lawyers by calling Pulgini & Norton at (781) 843-2200 or contacting us online.