Real Estate Litigation

Appeals Court holds no "easement by necessity" for maintenance of land obtained by adverse possession.

In the recent decision, McDonald v. Andrade, the Massachusetts Appeals Court reversed a trial court decision, awarding an easement to a Plaintiff who had - in the same lawsuit - obtained the land to which the easement pertained by adverse possession.

Appeals Court Holds That Easements Provide Access To Landlocked Parcels

The Court of Appeals recently issued an interesting decision, Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015), concerning easements and accessibility rights to parcels of land owned in the late 1800s by members of the Wampanoag Tribe of Gay Head in Martha's Vineyard. The parcels in question had been part of a larger tract of land owned by the Tribe in common ownership. In the 1870s, members of the Tribe petitioned the Court to partition, or divide, the land into individual parcels which were then given to individual Tribe members to be held in severalty. Many of the parcels that resulted from that division were landlocked. At the time the land was partitioned, provisions were not made for easements that would provide a right of access to those landlocked parcels. Over a century later, the owners of the landlocked parcels brought an action asking the Court to declare that the parcels of land had access easements across neighboring lots.

Massachusetts Appeals Court Holds Operators of Commercial Campground Established Right to Un-Enclosed Land Through Adverse Possession

Under the doctrine of adverse possession, an individual, business, or group of individuals who have continuously used land owned by someone else for twenty years can make a claim that such use entitles the claimant to ownership of the property. To prevail on a claim of adverse possession, a claimant must prove (1) he or she used the disputed property or portion of a property without permission, (2) that the use was actual, (3) open, (4) notorious, (5) exclusive, and (6) adverse for a period of at least twenty years. Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Supreme Judicial Court Rules That Real Estate Salespersons Can Continue To Be Defined As Independent Contractors

The Supreme Judicial Court has recently affirmed in Monell v. Boston Pads, LLC, 471 Mass. 566 (2015) that real estate brokerage companies can continue to classify real estate salespersons as independent contractors and are not subject to the Massachusetts independent contractor statute.

As a Personal Representative, Do You Have to Sell Real Estate?

The largest asset in an estate is often real estate, such as the family home. Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property. What happens to such property varies in every situation and poses different risks for the Personal Representative. The most straightforward situation is when the decedent leaves real estate through a Will to a devisee, such as a parent leaving the family home to their children. Upon the parent's death, the real estate transfers to the children to whom it was devised through the Will, subject only to certain allowances, rights of creditors, elective share of a surviving spouse, and administration. See M.G.L. c. 190B, § 3-101.

Hidden Defects May Invalidate Deeds

Recording real estate deeds in a county registry is intended, among other things, to prevent fraud and ensure that a prospective buyer can verify that the seller actually owns the property for sale. In the rare case where a seller sells a property twice, if the first buyer promptly records her deed, the second buyer is considered to be "on notice" that the seller no longer owns the property, and thus the second deed is treated as void in light of the first, recorded, deed. This rule protects "first buyers" who record promptly from claims of ownership brought by others, and it protects potential "second buyers" from unwittingly accepting an invalid deed.

Bankruptcy Court Rules Remainder Interests Not Subject to Homestead Exemption

In a "Chapter 7" bankruptcy proceeding, a debtor's assets are liquidated, and the proceeds are divided among the debtor's creditors. Some of the debtor's assets, however, may be exempt from liquidation under various provisions of federal or state law. One such exemption is created by the Massachusetts Homestead Statute, M.G.L. c. 188, §§ 1, et seq. The Homestead Statute protects a debtor's home from most creditors, subject to certain restrictions. To qualify for this "homestead exemption," the debtor must be an owner of a home who occupies the home or intends to occupy it as a principal residence.

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