Thursday, March 16, 2023

Appeals Court Applies Shoreline and Easement Principals to Great Ponds

 Michael J. O’Neill

For anyone contemplating using a right-of-way to reach a Great Pond in Massachusetts, two must-read Appeals Court decisions are Kubic

v. Audette,
98 Mass. 289 (2020) (Kubic I) and Kubic v. Audette, 102 Mass. App. Ct. 228 (2023) (Kubic II). They explain the principle of ownership of accreted land bordering a Great Pond, the rights and limits of access to a Great Pond, the tests for overburdening of an easement, and the proper interpretation of easements. The result is respect for but reasonable limits on use of an easement to reach a Great Pond, reflecting both the intent of the parties in creating the original easement, as well as the traditional limits on uses of a Great Pond itself. Recall that a Great Pond is defined as a natural pond the area of which is twenty acres or more. G.L. c. 131, § 1.


Plaintiffs Vince Kubic and Paul Kubic own adjacent lots separated by a 50-foot-wide unpaved right of way that extends from the street to Webster Lake, which is a Great Pond.  This is the lake with the Native American name that is reputed to be the longest: Lake Chaubunagungamaug.  Audette is the owner of an inland lot which has a deeded right of access over the right of way to get to the Lake.  Audette also purchased a release deed of the right of way from a purported heir of the original developer of the subdivision of which the properties are a part and thereafter claimed that he owned the fee in the right of way. Conflict arose when Audette began using the right of way more intensely than other easement holders historically had done.


Audette represented to MassDEP that he owned the land at the end of the right of way and obtained a waterways license pursuant to G.L. c. 91, the Massachusetts Tidelands and Waterways Act.  He constructed a trident-shaped dock at the end of the right of way, thirty-five feet wide and protruding fifty feet into the lake.  He docked his boat there, which comfortably held fifteen people.  He used the right of way regularly, as much as every day during the summer.  He has a large family, who had an open invitation and were regular guests.  He graded the right of way and installed pavers to facilitate motor vehicle access.


The Kubics brought an action in Land Court to quiet title in the right of way and to establish the parties’ rights to use it.  The Land Court ruled in favor of the Kubics on some of the issues and in Audette’s favor on others, but declined to rule on some issues.

The record established that, at least for a period of time that included 1948, the shoreline was submerged.  Under the legal principles governing accretion and reliction of the ocean and certain water bodies, this raised some question whether the Commonwealth might make some claim of ownership if and when it reemerged. There are many cases about who owns “new land” when it appears, or loses “their land” when it goes under water, but here the Commonwealth disavowed such a claim. The state took the position that the reemerged land would belong to the littoral owners.  This is consistent with the general rule that the waterside boundaries of littoral property generally follow the changing waterline. 


There are exceptions to this general rule that lot lines move with the water lines.  An owner cannot artificially add to his land and then claim the benefit of the addition.    In such disputes, the history (or lack thereof) of the filling, dredging or grading of such a shoreline becomes relevant or even determinative. These disputes often arise in coastal areas, where lands are affected by tidal action and by storms, so the landforms are dynamic, but also in lakes, ponds, rivers and streams where alterations may be natural or man-made.


The Appeals Court used the term “littoral,” not “riparian.” It is useful to consider the natural processes which are at work and the resulting movement of the ownership line. According to Black’s Law Dictionary, “littoral rights” are rights concerning properties abutting an ocean, sea, or lake rather than a river or stream (riparian). The accretion and reliction principles vis a vis the line of ownership, however, appear to apply equally, with variations possible from the general rule. Specifically, the decision in Kubic I stated in footnote 6: “As a general rule, a littoral owner is entitled to newly emergent land whether that land emerged as a result of accretion (the gradual buildup of material next to the existing land) or reliction (the gradual receding of the waters), while such an owner loses title to the land lost to the water through erosion.”


In the case of East Boston Co. v. Commonwealth (1909), dealing with tidal flats, the SJC had held: “Upon the doctrines applying to accretion and erosion and to the elevation and subsidence of land affecting the water line along the shore of the sea under conditions like these, the line of ownership follows the changing water line.” We observe that this rule would seem to apply to deeds and other real estate instruments describing the property as extending to, by or along “the shore,” “the water,” “the lake,” “the pond,” “the bay,” “the river,” “the ocean,” ”the sea,” and the like. This rule would not apply, it seems, if the deeds instead go along a described line or to a point, in modern times a metes and bounds, or perhaps by operation of the derelict fee statute to the midpoint of a way or water. In the latter situations, the property in question consists of specific size, dimensions and lot lines which are fixed and not flexible. 

The Appeals Court held in Kubic I that the Kubics owned the fee in the right of way down to the waterline, and the easement holders were given the right to use the right of way to gain access to the Lake, which, once there, they could use for fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.   The Appeals Court further held that it was within the Land Court’s authority to conclude that the use of motor vehicles on the right of way was reasonably necessary to full enjoyment of the access rights that the easement provided, but that this does not mean that Audette had the right to park motor vehicles on the right of way.   Rather, Audette only had the right to temporary parking on the right of way to offload people or items.   Also, Audette could not occupy the right of way by hosting social events and placement of a picnic table in it, interfering with the right of the Kubics and others to gain access to the Lake.


Kubic I, as a result, vacated the Land Court Judgment insofar as it stated that Audette and his household members have a right to park in the right of way, modified it to prohibit Audette’s actions in the shoreline area that constitute occupation of that area, and remanded the case to the Land Court to address the extent to which Audette’s use of the dock unreasonably interferes with the rights of the Kubics and people other than Audette who hold easement rights in the right of way. That remand, which came back up to the Appeals Court, resulted in Kubic II.


Kubic II framed the issue to be whether the Audette’s use of the right of way constituted an overburdening of the easement, which it defined as “use for a purpose different from that intended in the creation of the easement.”  The Appeals Court then instructs how overburdening is shown by attending to changes in the “manner, frequency, or intensity of the use.”   

Kubic II includes directions as to how the reviewing court is to determine the scope of the easement.  “We construe the scope of an easement from the parties’ intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer.”  It continued to provide helpful, practical guidance: a “court may consider subsequent uses, not too remote in time or disconnected from deed, to discern parties’ intent in creating easement.”  It is not uncommon for an easement to be created merely by a brief, one- or two-sentence statement in a deed.  It is helpful that the Appeals Court in this case recognizes that evidence of the interpretation that the parties themselves gave to the easement at the time, which may be considered by the Court to assist in the determination of the intent of the parties.


The Land Court on remand did not reach the question whether the placement of the dock interfered with the use of the right of way by the Kubics and others. Rather, it determined that the intended uses of the right of way were limited to the “transient uses traditionally associated with public access to tidal waters, navigable streams, and great ponds,” such as fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.  It ruled that Audette could use the right of way for temporary parking and placement of items (for no more than fifteen minutes) to serve such purposes.  The Appeals Court affirmed that limitation in Kubic II.


Audette had argued that because the right of way was unquestionably intended to provide easement holders access to the lake for boating, it follows that it must also provide him access for a dock.  The Appeals Court rejected this argument, stating that the fact that he has a general right of way does not mean that he may exercise it in any manner he sees fit. 

Audette then argued in the Appeals Court for the first time that MassDEP’s grant of a waterways license under Chapter 91 to construct and maintain the dock necessarily implied that he has a property right to use the right of way to gain access to it.  The Appeals Court ruled that this “argument of last resort” not only was waived, but also was meritless.  “Licenses granted under c. 91 do not create property rights, nor do they authorize interference with the property rights of others.”    In footnote 5 of Kubic II, the Appeals Court stated outright that Audette’s standing and chapter 91 claims were frivolous.


Kubic I and Kubic II, taken together, strongly stand for the proposition that the holder of a right of way cannot interfere with rights of way held by others.  They reinforce the principle that a right of way is a lesser interest than ownership of the fee interest, and when the owner of a right of way uses it as if he owns the fee, he is likely to get their wings clipped.  And these cases protect Great Ponds by recognizing the uses of the easement to the water are limited by the proper uses of a Great Pond, in which the Commonwealth has an interest in protecting and managing for the benefit of the public.

A senior associate at McGregor Legere & Stevens, Mike O’Neill is a member of REBA’s Environmental Law and Renewable Energy Section.  He has more than thirty-five years of experience in a wide range of litigation in all courts and in real estate and commercial law, concentrating in environmental, land use law and litigation.  His email address is Editor’s Note: The Association’s Land Use and Zoning Section Co-chair Nicholas P. Shapiro represented the successful plaintiffs in both Kubic I and Kubic II.




Wednesday, March 1, 2023

REBA President’s 2023 Message

Julie Pruitt Barry

Happy March 2023!

What exciting and unprecedented times for a real estate lawyer. For those of us who have been practicing for longer than we’d like to admit, we are seeing new issues and dilemmas arising, as we tackle wide-ranging impacts and reverberations in real estate and land use, ranging from cannabis legalization to climate change. Due to COVID-19, we’ve witnessed a generational shift in measuring productivity, with the almost certain likelihood that remote is here to stay, as so many of us are now working remotely for part of their workweek. 

While many of these new land use issues create challenges for clients and their lawyers, they also offer us new opportunities, and may help make our sometimes staid practice area more interesting and relevant to fellow legal professionals. REBA is at the forefront of these issues, offering members valuable information and guidance, including section-sponsored webinars and CLE programs at the Spring Conference in May and Annual Meeting and Conference in November, on topics such as siting cannabis facilities, and the Net Zero Stretch Energy Code. Indeed, we’re even relaunching REBA News –after 20 years as a supplement to Lawyers Weekly – in an electronic format, available on the web site and emailed monthly to members, to help us ensure that content for our members is timely and truly newsworthy.

This moment of unprecedented change in real estate and land use dovetails with REBA’s ongoing mission to increase and diversify its membership, ensuring the Association’s continued future growth and success. Of course, this is true for real estate practice overall, but particularly for REBA’s ability to attract newer professionals – both legal and non-lawyer professionals – and to welcome diversity in our ranks, so that REBA more closely reflects the composition of the bar across Massachusetts. REBA, like any organization, benefits from a more diverse membership, hopefully ensuring a continuity of leadership, ideals, and mission continuing long after many of us have decided we just can’t take the excitement anymore. Achieving these goals is more possible than ever with REBA’s remote capabilities, as our members can conveniently and easily attend webinars and section meetings in all parts of the Commonwealth, as we move our 150-year-old organization into the future.

With REBA, as in much of life, what you give is what you get. I urge you to support REBA in whatever capacity you can. Join a section; participate in CLE programming; attend a webinar. Personally, my goal this year is to attend as many REBA webinars as possible – and with remote Zoom programs, it’s so convenient. For one example, this past month, I attended the Paralegal and Title Insurance Sections’ joint webinar with the Land Court’s Chief Title Examiner Christina Geaney. It was an outstanding program, with Ms. Geaney providing valuable information, insights, and tips from her office on a range of topics that would be of great value to any practitioner. 

I look forward to seeing you soon, at the Spring Conference in May or remotely, to hear about your experiences and increased involvement with REBA.

Till next time

Thursday, February 16, 2023

SJC Rules Bourne’s Ban on Recreational Marijuana Establishments is Valid

Caroline E. Smith

The Supreme Judicial Court, in its decision in the case of Haven Center, Inc. v. Town of Bourne, 490 Mass. 364 (2022), upheld as valid the Town of Bourne’s general bylaw ban on recreational marijuana establishments. The Town’s approach was impeccable and the decision is instructive.

In 2016, Massachusetts voters enacted a state ballot initiative legalizing the sale and use of
recreational marijuana. This law, codified as
M.G.L. c. 94G, gave individual cities and towns the ability to ban recreational marijuana establishments from their communities if the majority of voters in the municipality voted “no” on that ballot initiative and then enacted such a local ban by December 30, 2019.

The majority of the voters in the Town of Bourne on Cape Cod in 2016 had voted “no” on this ballot initiative. In May 2017, the Town then voted to impose a temporary moratorium on recreational marijuana establishments. It would last either until November 30, 2018, or until the Town enacted zoning bylaw amendments to regulate such establishments.

In October 2018, two bylaw amendments were presented at Bourne Town Meeting. Warrant Article 14 (Article 14) proposed an amendment to Bourne’s general bylaws to prohibit all commercial recreational marijuana establishments in Town. Warrant Article 15 (Article 15) proposed amendments to the Town’s zoning bylaw that would regulate recreational marijuana establishments.

An amendment to a general bylaw requires a simple majority vote while an amendment to a zoning bylaw requires a two-thirds majority vote. Article 14 did pass by a simple majority vote, but Article 15 did not pass after failing to receive the requisite two-thirds majority vote. The general bylaw became law, while the zoning did not.

The Haven Center, Inc.—a company seeking to operate a retail recreational marijuana establishment in Bourne—filed suit in state court seeking a declaratory judgment that Article 14 was invalid. The Haven Center argued that Article 14 violated the Home Rule Amendment, because Article 14 constituted a zoning bylaw and was inconsistent with the Zoning Act, M.G.L. c. 40A, §§ 5-6.

The Home Rule Amendment allows municipalities to enact local ordinances or bylaws that are not inconsistent with the Massachusetts Constitution or laws. The Haven Center argued that Article 14, as a matter of law, should be regarded as a zoning amendment—and not a general bylaw, as the Town had characterized it—because it prohibited a particular use of land.

The argument continued that since Article 14 was in effect a zoning bylaw, its enactment procedure (no public hearing and passed by a simple majority vote) violated the procedural requirements set out in c. 40A, §§ 5-6.

The language in M.G.L. c. 94G indicates that a municipality may prohibit recreational marijuana establishments through general bylaws or zoning bylaws. Nonetheless, under Massachusetts court precedents, even if the Town intended Article 14 to be a general bylaw, it could be deemed a zoning bylaw, subject to , if certain factors were met.

Such factors are whether other municipalities have adopted similar bylaws as zoning bylaws, whether the municipality whose bylaw is being scrutinized has previously regulated the topic through comprehensive zoning ordinances, whether the bylaw is intended to prohibit or permit any particular listed uses of land, and whether the dominant purpose of the bylaw pertains to interests typically addressed by the zoning process.

The SJC, hearing the case on appeal, ruled that Bourne’s temporary moratorium of recreational marijuana establishments was not a comprehensive zoning scheme and that Article 14 was not a zoning bylaw, simply because it indirectly prohibited the use of land in Town for recreational marijuana establishments. Because the Court ruled that Article 14 was not a zoning bylaw, it was not subject to the procedural requirements of M.G.L. c. 40A.

The Haven Center’s second argument was that Article 14 was inconsistent with the provision under M.G.L. c. 94G, § 3(a)(1) that prohibits municipalities from using zoning bylaws to prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment.

The SJC held that Article 14 was not subject to § 3(a)(1), because § 3(a)(1) only prohibits zoning bylaws that prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment. Because the SJC determined Article 14 was not a zoning bylaw, § 3(a)(1) did not apply to Article 14.

The Haven Center’s final argument was that Article 14 was inconsistent with the provision under G.L. c. 94G, § 3(a) that prohibits “unreasonably impractical” bylaws. The SJC ruled that the specific state statutory authorization to adopt a complete ban of recreational marijuana establishments under § 3(a)(2)(i) superseded any general requirement that a bylaw not be unreasonably impractical.

Thus, under the principles of Home Rule, bylaw application, and statutory interpretation in Massachusetts, the Town of Bourne succeeded in prohibiting all commercial recreational marijuana establishments in Town.

An Associate at McGregor Legere & Stevens PC, Caroline Smith is a member of REBA’s Environmental and Renewable Energy Section and New Lawyers Section. She can be reached at

Tuesday, January 31, 2023

MCAD Awards Damages Against Landlord and Property Manager for Failure to Accommodate a Tenant’s Request concerning a Dog

 David M. Rogers

Requests to keep emotional support animals in housing with pet restrictions remain on the rise.  A recent Massachusetts Commission

Against Discrimination (“MCAD”) ruling serves to underscore the notion that property owners and property managers are generally well advised to grant reasonable accommodations in order to avoid running afoul of state and federal fair housing laws.

In a late-December decision, the MCAD hearing officer Jason Barshak awarded $47,500 in damages to a tenant and her boyfriend due to the failure of a landlord and property manager to reasonably accommodate the tenant’s request concerning her boyfriend’s dog.  In Fortin v. Marty Green Properties, the hearing officer found the respondents liable under G.L. c. 151B, §4(6)(B).

Hang Ngo (“Ngo”) was the owner of an apartment complex located in Northbridge.  The complex – which consisted of two adjacent buildings, each containing six units – is managed by Marty Green Properties, LLC (“MGP”).  Mr. Ngo rented a unit to Nicole Evangelista (“Evangelista”).  The lease between the parties – like all the leases for the complex – did not permit pets.

Evangelista resided in the apartment unit with her three children.  In 2015, she met Joshua Fortin (“Fortin”) and they subsequently began dating.  Roughly one year later, Fortin moved into Evangelista’s apartment.

Fortin has Type 1 diabetes.  Thus, if his blood sugar level becomes too high or too low, he can suffer severe consequences.  Fortin owned a pit bull named Sam (these cases always seem to involve pit bulls).  According to Fortin, Sam was able to detect when Fortin’s blood sugar levels were dropping.  For example, if Fortin’s blood sugar levels dropped during his sleep, the perceptive pit bull would purportedly awaken his owner.  Fortin’s doctor issued a letter explaining that it was medically necessary that Fortin have Sam with him at all times.

While diabetic alert dogs actually do exist, the hearing officer – based upon expert testimony presented at the hearing – did not find that Sam actually possessed such blood-sugar-sniffing skills.  He did, however, find that Sam provided emotional support to Fortin as he believed that his dog had these life-saving powers.

Marty Green (“Green”), the principal of MGP, learned of Sam and initially advised Evangelista that Sam would need to leave or she would receive a notice to vacate the property.  As a result, Fortin and Sam moved out for a couple of months, but ultimately elected to return to the apartment after Fortin obtained a certificate listing Sam as a service dog.  Additionally, other dogs (a pug and a black lab) were apparently living in the complex at that time.  Upon learning that Sam had returned to the property, however, Green instructed Evangelista to vacate the property.  This instruction was followed by a formal notice to terminate tenancy at will.

Evangelista, Fortin (and Sam) never actually vacated the apartment as they filed the subject MCAD complaint prior to the date that Evangelista’s tenancy was set to expire.

Both the state anti-discrimination statute, Massachusetts General Laws Chapter 151B, and the Federal Fair Housing Act, 42 USC § 3604 prohibit disability-based housing discrimination.  It is worth noting that – although the Fortin case involves an apartment complex – these laws would be equally applicable in a condominium setting. 

Under the state and federal law, it is considered discrimination for a property owner to refuse to make reasonable accommodations in rules, practices, policies, or services when such accommodations are necessary to afford a disabled person equal opportunity to use and enjoy the premises, including private units and common areas.  The subject resident must suffer from a physical or mental disability that limits one or more major life activities.  Reasonable accommodations need not be provided if the request poses a direct threat to the health or safety of others, or if doing so would present an undue burden.  Whether an accommodation is reasonable requires fact-specific inquiry and a case-by-case analysis.

A service animal – under the Americans with Disabilities Act – is a dog that has been individually trained to do work or perform tasks for an individual with a disability.  An example of a service animal would be a guide dog trained to lead blind people around obstacles.  By comparison, an emotional support animal – like Sam – is not necessarily trained to perform tasks or services.  An emotional support animal is a companion animal that a medical professional has determined provides benefit for an individual with a disability.  Both service animals and emotional support animals may be entitled to a reasonable accommodation.

After a four-day hearing, the hearing officer concluded that Ngo and MGP failed to provide a reasonable accommodation and that they were therefore liable to the complainants pursuant to Sections 4(6) and 4(7A)(2) of G.L. c. 151B.  The officer concluded that (1) Fortin had a handicap (diabetes), (2) Green was aware of Fortin’s handicap, (3) the accommodation was reasonably necessary to afford Fortin an equal opportunity to enjoy the premises, and (4) Green refused to make the accommodation.  He noted that “establishing that a requested accommodation is necessary ‘requires at a minimum, a showing that the desired accommodation will affirmatively enhance a disabled tenant’s quality of life by ameliorating the effects of the disability.’”  As mentioned above – although Sam didn’t actually possess any special skills – the officer found that Sam “ameliorated the emotional effects of the disability and enhanced Fortin’s quality of life” because Fortin believed Sam had the ability to detect blood sugar levels (“[a]lbeit in a placebo like manner”).

He found that Ngo was liable to Evangelista and Fortin to the extent that Green violated their rights under G.L. c. 151B through Ngo’s relationship with MGP.  As the property owner, Ngo could not delegate to MGP her duty to comply with fair housing laws.

The hearing officer noted that Green inappropriately failed to engage in requisite conversations with the complainants concerning their request for a reasonable accommodation.  Green did not indicate any willingness to engage in discussions toward seeking a resolution – in contravention of case law that required participation in an interactive dialogue process.

While Fortin was not a tenant, the hearing officer concluded that he had standing to advance a claim under Section 4(6)(b) as that provision addresses discrimination “against any person.”  Fortin was a member of a protected class given his disability (i.e., diabetes).  He also found that Evangelista could advance such a claim – despite a lack of a disability – because the case law supported a determination that the tenant could not have lesser rights than the non-tenant boyfriend (“[o]therwise, the landlord would be able to evict with impunity the tenant or lessor for violation of the policy which would lead necessarily to the displacement of the disabled person”).

The hearing officer found that Green’s actions in pursuing multiple actions against the complainants for unpaid rent after the MCAD complaint was filed constituted actionable retaliation (for which Ngo and MGP were also liable).  Although Evangelista had indeed failed to timely pay rent, Green’s efforts in attempting to collect same were far more aggressive than prior to the complainants’ initiation of the MCAD action and, as such, Green’s conduct was pretextual.

The hearing officer awarded emotional distress damages to the complainants – $20,000 to Evangelista and $10,000 to Fortin respectively.  The officer made all three respondents jointly and severally liable for those damages.  He also imposed civil penalties against Green ($7,500), MGP ($5,000), and Ngo ($5,000).  Additionally, he ordered the respondents to attend training concerning disability law requirements.

As provided above, the law concerning reasonable accommodations applies to condominiums as well as apartment complexes.  Condominium boards are well served to create policies for responding to reasonable accommodation requests.  Specifically, Boards should require unit owners to submit such requests in writing, along with documentation from a care provider that supports the claim of a condition meeting the legal definition of a disability.  Each request must be addressed promptly and given individual attention.  As the decision in Fortin makes clear, this individual attention must include an interactive dialogue process. 

The respondents have reportedly already filed a notice of appeal in the case.

A member of REBA’s Condominium Law and Practice Section and a principal at Moriarty, Troyer & Malloy LLC, Dave specializes  in complex civil litigation at both the trial and appellate levels. He has extensive experience in the area of construction litigation. Dave’s practice is focused on construction, real estate, and condominium matters. His clients include condominium associations, real estate developers, general contractors, subcontractors, and individuals.  His email address is