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Failure of Tax Assessments by a Town does not create a Roadway by Prescriptive Easement

Topics: Public Way ; Prescriptive Easement; Layout

The Appeals Court has affirmed summary judgment finding that, as a matter of law the Town of Marblehead had not created a public way from an existing way, by either a manner prescribed by statute or prescription on their parcel of land. McLaughlin v. Town of Marlblehead , Slip Opinion No. 06-P-119 (March 23, 2007).

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TWO HOMES, TWO MORTGAGE CONTINGENCIES, TWO LOAN APPLICATIONS, BUT ONLY ONE LOAN, WHO WINS?

Topic: Real Estate Transactions

The Appeals Court of Massachusetts in Alfeo v. Dinsmore, 68 Mass. App. Ct. 249 (2007) found that a mortgage contingency clause contained in a Purchase and Sale Agreement must be read literally. Therefore, when the clause stated that an “application to one financial institutional lender shall satisfy Buyer’s Diligent efforts under the agreement” the Buyer only needed to apply to one lender. The fact that the Buyer simultaneously applied for, and received, a separate loan to purchase a separate home was irrelevant.

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NEIGHBOR FLOODING YOUR LAND? COURT MUST USE BALANCING TEST TO DETERMINE IF IT’S A NUISANCE.

Topic: Land Use, Trespassing, Private Nuisance

The Appeals Court of Massachusetts in Trenz v. Town of Norwell , 68 Mass. App. Ct. 271, (2007) held that in order to determine whether a neighbor is liable for a private nuisance as a result of diverting water onto a neighbor’s land, the Court must first “determine whether landowner is making a reasonable use of his land.” Reasonableness is determined by utilizing a balancing test in which the Court weighs the “utility of the possessor’s use of the land” against “the harm which results from the alteration of the flow of the surface waters.”

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Free Appeals - Well, maybe.

Yes, if it is a ground-breaking issue and you've made it to the appellate level (the Massachusetts Appeals Court, the SJC or the Federal Circuit Court of Appeals) and if you have exhausted your finances, I may be willing to represent you in a land use, construction or real estate related appeal and charge you a reduced, or no legal fee.

Why on earth would I do such a thing?

(1) Money shouldn't always control who wins;

(2) It's interesting;

(3) It helps me market my expertise.

Contact us to see if your case qualifies.

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Thou Shall Not Covet Thy Neighbor’s Land, Especially If Thou Is Thy Neighbors Lawyer.

Topic: Real Estate, Adverse Possession

(By William F. Thompson)  The Appeals Court of Massachusetts upheld a

Land Court

decision that found that the principals of equitable estoppel barred an attorney from asserting adverse possession over a portion of his neighbor’s land.  The attorney represented a neighbor during the sale of his property to the defendant.  The attorney’s use of his neighbors land prior to the sale of the property, met the adverse possession requirements.  However, the Court found that the position taken by the attorney as a plaintiff claiming adverse possession, ‘squarely contradicted’ the position he took as counsel for the sellers.”  “One may not knowingly stand by and allow one’s land to be sold without asserting one’s title, yet thereafter assert an ownership interest against the purchaser.”

Moran v. Gala, No. 05-P-732 (2006).

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A Day Late and One Contingency Too Many.

Topic:  Real Property, Right of first refusal.  Contract, Performance and Breach

(By William Thompson)  Appeals Court of Massachusetts, re-affirmed the principal that an option contract can be exercised only in strict compliance with its terms.  When a third party makes a bona fide offer to purchase property, an existing right of first refusal evolves into an option to purchase.  The option must be exercised consistently with the terms of the initial contract or the option is dissolved.  Such was the case here, where the plaintiff made two attempts to exercise his options and twice failed to comply with the terms.  First, he attempted to add a financing contingency.  Second, he withdrew the contingency and attempted to exercise the option but on the 11^th day, despite the option being open for only ten days.

Christian vs. Edelin & another, No. 04-P-1391, March 16, (2006)

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TIME IS ON YOUR SIDE, UNLESS YOU’RE ON THE OTHER SIDE: RIGHT OF REFUSAL OR OPTION CONTRACT, IN EITHER CASE, WITHOUT A PROVISION FOR DURATION, COMMON-LAW RULE AGAINST PERPETUITIES RULES

Topic: Land Contracts, Rule Against Perpetuities

(By William Thompson)  The Superior Court distinguished an option contract from a right of first refusal.  The court noted that although a right of first refusal does not prohibit sale of property like an option contract, it does "dampen the enthusiasm of potential buyers to engage in negotiation.  Therefore, a right of first refusal "without a provision for duration of the interest to be measured by any life and being at the time of its creation" violates the common-law rule against perpetuities.   

Bortolotti v. Kesten, 2005 WL 3670420 (Mass.Super).      

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No Need for a Deed: Easement by Deed not Necessary for the Right to Lay Utilities, if the Easement is Created by Necessity or Estoppel.

Topic:  Zoning; Easement by Estoppel

(By William F. Thompson) The Massachusetts Appeals Court determined that rights in a disputed way which arose by estoppel, are created by "virtue of the language in a deed of conveyance.  Therefore, the rights created by the easement effectively arose "by deed."  Additionally, when an easement is not expressly described on a certificate of title, an owner may take subject to that easement if there were facts described in the certificate that would "prompt a reasonable person to investigate further."  The Court also found that the plaintiffs failed to prove that the additional use created by the development would be over burdensome.

Lane v. Zoning Board of Appeals of Falmouth, 65 Mass.App.Ct. 434 (2006) (01-23-06).

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Title Examiners Beware: Massachusetts Land Court maintains that "fifty-year title search" not enough to deny an easement absent from the chain of title for over a century.

Express Easements, The Effect of Title Reference on Extinguishment

The Land Court enforced a 125 year old easement that had been omitted from the chain of title for the past 114 years.  An express easement may be extinguished only by grant, release, easement, abandonment estoppel or prescription.  The mere absence of references to the easement in subsequent conveyancing instruments in the title does not absolve the title from the burden of an easement.

Sullivan v. Leonard, Mass. Land Court

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