Parties involved in a real estate dispute in Massachusetts are fortunate to have choices when it comes to the venue of the litigation. One of the most strategic decisions that a plaintiff or defendant can make is deciding where to litigate the case. When it comes to real property disputes, the Massachusetts Land Court and the Superior Court have overlapping jurisdiction, also referred to as concurrent jurisdiction, on certain claims. While the Superior Court enjoys broad jurisdiction over a variety of civil and criminal matters, the Land Court specializes in disputes involving real property. Massachusetts General Laws Chapter 212, § 26A, permits either party to remove any non-jury civil action involving "any right, title or interest in land" from the Superior Court to the Land Court. The claim must not be one that entitles a party to a jury trial because the Land Court only conducts jury-waived trials, frequently called bench trials.
After considering the strategic and practical benefits to litigating in the Land Court, discussed in greater detail here: /blog/2016/03/the-benefits-of-practicing-in-the-massachusetts-land-court.shtml, a litigant should consider transferring an eligible case to that court. Cases generally move faster in the Land Court than the Commonwealth's Superior Courts, which tend to have larger caseloads than the Land Court. Under G.L. c. 212, § 26A, the party seeking to remove a case to the Land Court must file a motion in the Superior Court requesting the transfer. In addition to persuading the trial judge in the Superior Court that the case should be removed, administrators from the Executive Office of the Trial Court must also approve the change of venue. The non-moving party, the one that is not requesting the transfer, can either assent to the motion or file an opposition. An opposition would focus on reasons why that party believes that a transfer is not permitted under the statute or not warranted for other reasons.
Examples of cases that have been transferred out of the Superior Court pursuant to M.G.L. c. 212, § 26A, include challenges to special permits and appeals of local zoning decisions. Attorneys at Fitch Law recently argued successfully in favor of removing a lawsuit that had related case history in the Land Court back to that venue to be litigated by the Land Court judge familiar with the procedural history and parcel of land at issue.
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