No Marshing-Around: Land Court Decision Traces Ownership of Mashpee Marshlands Back to the 1800’s.

By: Shannon F. Slaughter

The Land Court issued a decision in October (the “Decision”), after holding a bench trial to determine the ownership of the area between the mean high water mark (the line of the "upland") and

the mean low water mark (where the law deems the sea to begin) on a section of the perimeter of the Punkhorn Point peninsula, near Gooseberry Island, on the coast of Mashpee. The Plaintiffs in the case, Robert and Michelle Wolpe and James Atkins and John Weltman, own vacation homes at 80 Punkhorn Point Road (the “Atkins/Weltman Upland”) and 84 Punkhorn Point Road (the “Wolpe Upland”). Additionally, the Town of Mashpee claimed ownership of the marsh adjacent to upland owned by the Town (“Town Upland”). The Defendant, Matthew Haney as Trustee of SN Trust (“SN Trust”) claimed ownership of the marsh adjacent to the Wolpe Upland and the Atkins/Weltman Upland, and the marsh extending somewhat further south. See infra, Decision Sketch (additional notations added).

As Judge Long noted in the Decision: “precisely who owns the marsh, and where, is highly significant. For the Wolpes, Mr. Atkins, and Mr. Weltman, owning (or not owning) the marshland directly abutting their vacation houses is the difference between having waterfront homes with full access and rights to the waterside, and homes with no such rights. For [SN] Trust—which, in addition to its mainland claims, is the owner of Gooseberry Island just offshore— it is the difference between being able to build a house on that Island and not being able to do so, because only by owning the strip on the mainland at the end of Punkhorn Point Road will it have a place from which to construct a connecting bridge.”

The first task presented to the Court was determination of the record owner(s) of the marshlands in question. This required the Court and the parties to travel back in time to the late 1800s. A number of legislative acts in the late 1800s authorized the Barnstable Superior Court to appoint three Commissioners to make set-offs of certain land in Mashpee that was owned communally by the Mashpee (formerly known as Marshpee) Wompanoag Tribe. The set-offs by the Commissioners allowed individual members of the Tribe to own the parcels individually.

The first lands legislatively authorized to be set-off were uplands. A map of the uplands was created in 1877 by one of the Commissioners, Cyrus Cahoon, who was a surveyor (the “1877 Map”). Several years after the uplands were set-off, the legislature granted the same three Commissioners the authority to set-off marshlands. Both the upland and marshland set-offs were confirmed by orders of the Barnstable Superior Court. Thus, the Land Court’s analysis of the true record owner of the marshlands in question began with the set-offs in the late 1800s and the Court disregarded any subsequent deeds or plans that could not be traced back to the original set-offs as land grabs.

The marshlands in question involved three specific marshland set-offs: (1) “Old Division Lot 16,” located on the mainland, was partitioned to members of the Pocknet family; (2) “Old Division Lot 17,” located partially on the mainland and the remainder surrounding Gooseberry Island, was partitioned to the Coombs family; and (3) “Old Division Lot 18,” located on the mainland, was partitioned to the Mingo family. It was undisputed at trial that the Plaintiffs own record title to the majority of Old Division Lot 16, Defendant owns record title to Old Division Lot 17, and the Town owns title to Old Division Lot 18.

Unlike the 1877 Map of the uplands, a map of these marsh set-offs could not be located (although the Court found that such a map was likely created contemporaneously with the marsh set-offs). Thus, the second task presented to the Court was to determine where Old Division Lots 16, 17 and 18 are presently located on the ground. In order to do so, the Court analyzed the specific descriptions used by the Commissioners in the marsh set-offs, which he found were “carefully chosen references in light of (1) the commissioners' awareness of the Legislature's command that the set-offs be "properly describe[d] ... in writing," (2) their professional occupations (one a surveyor, another an attorney) that accustomed them to the need and practice of clear and precise language when drafting, and (3) their knowledge that the set­offs would be reviewed and ultimately approved by the Barnstable Superior Court, where clarity was essential.”

Critically, the Old Division Lot 16 marsh set-off was described as being bounded to the west by the “upland of the Homestead Lot of Elijah W. Pocknet" (the location of which was shown on the 1877 Map) and bounded on the east by the Mashpee River. In contrast, the Old Division Lot 17 marsh set-off was bounded on the west by "upland belonging to Elijah W. Pocknet" (the location of which was shown on the 1877 Map) and bounded on the east by Popponesset Bay. Finally, the Old Division Lot 18 set-off was described as being bounded on the west by "land belonging to Elijah W. Pocknet," and bounded on the east by Ockway Bay. The distinctions in these descriptions were critical in the Court’s determination that Old Division Lot 17 (owned by SN Trust) was located adjacent to the Wolpe Upland and the Atkins/Weltman Upland and extended south of Punkhorn Point Road.

Having determined that SN Trust owned the marshes at issue, the final issue presented to the Court was determination of whether Plaintiffs established adverse possession or adverse possession by color of title to the marshlands. To succeed on an adverse possession by color of title claim, a claimant must prove the following: (1) the claimant's deed must facially include the land adversely claimed, (2) the deed must be recorded and have been on record for  twenty  years  or more  prior  to the filing of the lawsuit or other interruption of the claim (the "adverse possession  period"), (3) the claimant must have actually, openly, notoriously, exclusively, and adversely possessed at least a part of the land for that continuous, uninterrupted twenty years, and (4) if the claimant's own deed and acts of adverse  possession  are insufficient  to meet  the twenty­year period, he may "tack" onto the deeds and adverse acts of his predecessors in title during that period if (a) there was  no interruption  between  their  deeds and  adverse  acts and his, and (b) their deeds were also  recorded  and  included  the land.  See Dow v. Dow,  243 Mass. 587, 590 (1923); Nantucket, 271 Mass. 62, 68 (1930); Norton v. West, 8 Mass. App. Ct. 348, 351-352 (1979); Long v. Wickett, 50 Mass. App. Ct. 380, 382 n.3 (2000).

The adverse possession standard applicable to wild and uncultivated lands applied to Plaintiffs’ claims of adverse possession given the nature of the marshlands and a "pronounced" and continuous occupation was needed in order to prove their claims. Peck v. Bigelow, 34 Mass. App. Ct. 551, 556 (1993). Like all cases involving adverse possession, the Court’s analysis was fact specific: The land at issue “is salt marsh, covered in tall grass, deep mud, and completely under water at high tide. It is unsuitable for use as a beach (too silted and muddy) and, so far as the record shows, has never been used as a beach or for any recreational purpose other than fishing or crabbing. People do not walk on it idly or for pleasure. During the entirety of the view, which took place at mid-day, the area in front of the plaintiffs' homes was muddy, under water, and un-walkable. […] [A]ny activities on it, of any kind, were few and far between. It was not a place for use. Rather, it was something that was looked at, and which viewers looked over, as they watched sunrises, bird migrations, and boats in Popponesset Bay.” 

The Court found that Atkins/Weltman failed to establish adverse possession or adverse possession by color of title over any portion of the marsh. The Wolpes, however, gained adverse possession over an area where their predecessors constructed a wooden walkway, which is in the same location where the Wolpe’s current dock is located. This wooden walkway was constructed sometime in the 1950’s and went into disrepair in the 1980s. The construction and maintenance of this walkway, the Court found, was such a pronounced occupation to constitute adverse possession over the marshlands and the Wolpe’s predecessors used the wooden walkway openly, notorious, adversely and continuously for at least twenty years.

The wooden walkway did not support the Wolpe’s claim of adverse possession by color of title. The wooden walkway began on the Wolpe upland and extended over the marsh adjacent to the Atkins/Weltman Upland, not the marsh adjacent to the Wolpe Upland that they were claiming under the theory of adverse possession by color of title. Therefore, the plans of record on which the Wolpes relied to claim ownership of the marsh adjacent to the Wolpe Upland did not include any portion of the marsh that had actually been adversely possessed—only the area where the wooden walkway was located (the marsh adjacent to the Atkins/Weltman Upland) was adversely possessed. Therefore, the Court held that the Wolpes had adverse possession of the area over which the wooden walkway was located (where the Wolpes’ dock now stands), but not to any other portion of the marshlands at issue.

Notably, the Court noted that there was testimony regarding children walking along the neighboring upland and occasionally going into the marsh to play, but those activities could not establish adverse possession as use by children, alone, cannot reasonably be seen as associated with a claim of ownership. “[N]o reasonable view of adverse possession considers young children, playing on their own, to be either adverse claimants or agents of such claimants whom a landowner is forced to chase away on peril of losing his land. The law is many things, but it does not require people to be mean to children. Children fall into the category of those to whom implied permission is deemed to have been given.” The children did not stay long in the marsh. They did not build anything there. They were interested in exploring for fish, marine life, and the like, all of which were within their public rights to do under the Colonial Ordinance. In other words, marsh-ing around by children who were playing by themselves cannot support a claim of adverse possession.

Shannon Slaughter, a partner at Dalton & Finegold LLP, tried the foregoing cases, Land Court Docket Nos. 14 MISC. 487495 and 14 MISC. 486868 (KCL), in 2017 with Edward Englander of Englander and Chicoine, P.C. Shannon Slaughter’s practice focuses resolving real estate and land use disputes, including real estate acquisition and complex title litigation, prescriptive easements and adverse possession claims, determination of ownership of tidelands, zoning and subdivision litigation, construction defects, fraudulent title and conveyances, and condominium disputes.  She can be reached by email at sslaughter@dfllp.com.

ARE YOU READY FOR THE VIRTUAL NOTARY?

By Henry J. Dane

In recent years, the major concerns affecting Massachusetts mortgage transactions have been the abuses of sub-prime lending,

problems relating to foreclosure for both lenders and consumers, and widespread internet fraud leading to losses in the millions to consumers, lenders and attorneys. All of these affect the integrity of a dominant sector of the Massachusetts economy, the financing of home ownership. Since there never seems to be an end to the opportunities for things to go wrong, it is hard to justify practices such as Remote Online Notarization (“RON”) that further compromise the existing vulnerabilities of the system and provide new opportunities for fraud, mistake and confusion before the altar of convenience.

The question is, how far do we want to go to extend the “click to buy” mentality to mortgage financing?

Under Remote Online Notarization, a notary, qualified in another state, takes an acknowledgment by video conferencing or other electronic means from a borrower not then in their presence. An article in the July 30th ALTA Title News, dealing with the adoption of national standards for RON, made clear that the mortgage banking and title insurance industries have made its implementation a priority. If realized, a national lender could simply direct a Massachusetts borrower to a website, have them click “agree,” (much like downloading a new app on a cell phone), attach an electronic signature to a note and mortgage, and record the mortgage remotely under existing facilities for electronic recording. The borrowers would not be sitting in a bank branch or a lawyer’s office, but might be at their kitchen table between commercials at an NFL game. This would take place without anyone having seen the borrowers in person, or having had the opportunity to confirm their capacity, demeanor, understanding, identity or even existence.

The proposed Mortgage Industry Standards Maintenance Organization (MISMO) protocols might protect the lender and enable it to insure the loan, but what about the homeowner? As always, where large amounts of money are involved, even the best defenses have proved inadequate to deter inventive and determined criminals, and the internet has proven to be a fertile medium for wrongdoing. The object, which itself is questionable, is to make financing a home look and feel as easy as buying an electric can opener from Amazon, all without the intervention or participation of a lawyer, likely insulated from liability relating to the unauthorized practice of law, and not subject to ethical supervision by the BBO or otherwise accountable in any way whatsoever.

Under current Massachusetts law, consumers, lenders and the conveyancing industry have the benefit of laws that require that a mortgage be acknowledged, and that acknowledgment be taken with the borrower appearing in person before the notary “at a single time and place.” (M.G.L. c.222 §§1 and 15)

It is also a jurisdiction in which the SJC has ruled that “a lawyer is a necessary participant at the closing to direct the proper transfer of title and consideration, and to document the transaction, thereby protecting the private legal interests at stake, as well as the public interest in the continued integrity and reliability of the real property recording and registrations system.” (Real Estate Bar Assoc. v. National Real Estate Information Services, 946 N.E.2d 665 at 684).

The consequences of a failure to comply strictly with the legal requirements of Massachusetts law with regard to acknowledgements was the subject of the 2016 decision of the U.S. Bankruptcy Court for the Eastern District of Massachusetts in Degiacomo v. First Call Mortgage Company (Chapter 7 Case No. 14-10589-FJB). In that case, as later affirmed by the First Circuit, the court allowed the Trustee to avoid a mortgage because “a number of formalities must be observed in the execution of an acknowledgment” and “if these requirements are not met, ‘it is well established law that a defective acknowledged mortgage cannot be legally recorded, and, if recorded, the mortgage does not, as a matter of law, provide constructive notice to future purchasers . . . and may be avoided by the Trustee under 11 U.S.C. §544(a)(3).”

Although the 2016 amendment to the Notary Statute made some changes intended to validate improperly acknowledged mortgages, they left intact the requirement of section 16 (a) of Chapter 222, providing that “a Notary shall not perform a notarial act if: (i) the principal is not in the notary public’s presence at the time of notarization” or the definitional requirement of sec. 1 under which an acknowledgment is “a notarial act in which an individual, at a single time and place, appears in person before a notary public….” A violation of the statute is a criminal offense under section 18(a), allowing the court to impose fines and imprisonment, as well as injunctive relief. In addition, under subsection (c), a violation of the Notary Statute is “an unfair and deceptive trade practice” under Chapter 93A; and, under subsection (d), it shall not be a defense that the conduct occurred outside the Commonwealth. These are vitally important protections for the consumer.

Although perhaps an unintended consequence, RON will make it not only possible, but convenient and efficient, for a national lender (perhaps based in a state with more lenient consumer and banking laws) to eliminate from the system the one remaining factor that makes financing a home different than shopping on the internet.

Not only does online lending facilitate fraud and deceit by both borrowers and lenders, but, regardless of how and where the acknowledgement is taken, the closings facilitated by RON would violate the good funds law (M.G.L. c.183 §63B) which requires that no mortgage be recorded before good funds are in the hands of the closing attorney. This is one requirement that no remote lender can satisfy without using the services of a Massachusetts attorney with a Massachusetts IOLTA account; and if a Massachusetts attorney is involved, there is no need for RON.

A member of the Association’s board of directors and Co-chair of its Ethics Section, Henry Dane practices with the Concord firm of Dane, Brady & Haydon, LLP. His practice areas include real estate; zoning and permitting; civil litigation (primarily defense) and appeals; municipal law; criminal defense; medical employment law (advising and representing candidates for department chairs at medical schools); medical ethics and research integrity; non-profit and charitable corporations; and commercial lending. Henry can be contacted by email at hdane@danelaw.com.

Luncheon with Land Court Judges Diane R. Rubin and Jennifer S. D. Roberts (Video)

Protecting Clients from Hackers and Data Breaches

By Andrew Malia

Attorneys are understandably concerned about the security of their clients’ data and their liability if they suffer a data breach. The need for law firm data security is more important than ever. With data breaches becoming a common occurrence, modern lawyers must consider the threat of having their information stolen or compromised. The American Bar Association’s Model Rule 1.6(c) states,

“A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

The definition of “reasonable efforts” is left vague, so it’s up to each attorney to make sure they are doing all they can. Hackers are getting smarter all the time. Preventing data breaches and other unauthorized access to client information can be difficult. There are some simple steps you can take, however, to reduce your chances of being affected.

Document Security

You can make sure your data is protected by securing the files you send to clients. Sending sensitive data over email is risky because hackers have the potential to obtain information about your clients or your business. A phishing attack is when a hacker tricks you into entering your email password on a website they own. Accidentally giving your password to a hacker can be devastating if you are not prepared. When every file you have sent to your clients is stored in your email, a hacker has complete control if they obtain your email password. With access to this sensitive information, they can use it against you, your staff, your law firm, or your clients. They can also use your email contact list to spread their malware to your clients and coworkers.

Email impersonation is on the rise, especially for law firms. In this type of fraud, a hacker will buy a domain name that nearly matches your firm name and send documents to clients or ask them to transfer payment to a bank account. An unsuspecting client might send personal information to these hackers without realizing the scam.

An alternative to sending files through email would be to use a secure document portal. There are many types of systems to manage your documents, with the most popular options being Google Drive and Dropbox. There are also systems designed specifically for lawyers that integrate with your chosen practice management software. These portals are more secure than email, and you can grant or revoke access to files at any time. In addition, your clients will know that any documents coming from you will be accessible only on your portal and will be suspicious of any emailed documents sent by impersonators. Make sure your chosen document portal meets American Bar Association law firm data security standards.

Data Storage

One of the worst-case scenarios for your law firm would be to lose access to all your case and client data. This situation is always a possibility when you store everything on physical servers or hard drives in your office. Among the worst-case scenarios, fire or flood in your office can wipe out your physical servers, and you can lose all your firm’s data. If you do decide to use physical servers, an off-site backup is essential.

Ransomware is a relatively new threat, but it’s no less dangerous for your firm. In ransomware attacks, a hacker accesses sensitive data on your server (such as client financial information) and threatens to release or sell it until you pay a cryptocurrency ransom. Another method is for the hacker to lock your servers, holding your information hostage, and preventing work from being done until you make a payment. If you decide to use a physical server, you must maintain a talented and experienced IT professional or team who can prevent ransomware attacks.

Cloud Server

Rather than paying for expensive servers, backups, and IT staff, there is a more straightforward solution to keeping your firm’s data secure. Storing your data on the cloud can provide bank-level law firm data security without the extraordinary price tag. Small firms and solo practitioners often cannot afford to pay for top-of-the-line data management and security for physical servers. Storing data in the cloud can give attorneys the same level of protection for a fraction of the price.

Amazon Web Services is one of the top cloud computing companies. When you store data with Amazon, you’ll be getting the best combination of security and reliability available. Best of all, you don’t have to break the bank to have your data protected by the same company that manages the data of Fortune 500 companies and government agencies. Moving data to the cloud is becoming more common every year. It could be the perfect time to make that switch and protect your practice from the many risks of a physical server.

Cloud servers, however, are not without their disadvantages. Since they are accessed via the internet, you could suffer downtime if your internet connection is slow or spotty. Cloud servers also might not provide the same flexibility and control as a physical server. Your IT professional may be more comfortable working with a physical server. As with everything, do your research and make the best decision for your firm. When shopping for cloud practice management systems, ask the company for details about their cloud providers, including server location, average uptime, and data security.

Whether it’s hackers, ransomware, or physical dangers like fire and flood, the threats to law firms are more severe than ever. Cloud document and data storage can be a solution for law firms looking to provide their clients with more security. If you’re working with a reputable cloud company, cloud servers will be more secure, more reliable, and more trustworthy.

Andrew Malia is a content specialist at LEAP Legal Software. LEAP is the all-in-one practice management software for law firms in Massachusetts. LEAP’s cloud-based solution gives lawyers everything they need to make more money, including automated Massachusetts legal forms, cloud storage, document management, trust accounting, billing, reporting, and a mobile app. Find out more about LEAP at www.leap.us.

Department of Labor Updates Overtime Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees

Doug Troyer

The U.S. Department of Labor announced on September 24, 2019 its final rule that will make over a million new American workers eligible for overtime pay for the first time in over 15 years.

The final rule focuses on updating the requirements for an

employee to be exempt from overtime pay under the FLSA for so-called “white-collar” employees a/k/a as EAP employees (i.e. executive, administrative, professional, outside sales, and computer employees).

Covered employers under the Federal Labor Standards Act (“FLSA”) are required to pay employees a minimum wage ($12.00 per hour as of January 1, 2019 in Massachusetts) and pay overtime premium pay at the rate of 1.5 times the regular rate of pay of the employee who works more than 40 hours in a workweek (defined as any 7 consecutive work days by the FLSA). In Massachusetts, the overtime minimum wage is $18.00 per hour and while Massachusetts overtime rules do not require overtime after 8 hours in a day, overtime pay does kick in after a non-exempt employee works more than 40 hours in a given work week.

The final rule focuses on updating the requirements for an employee to be exempt from overtime pay under the FLSA for so-called “white-collar” employees a/k/a as EAP employees (i.e. executive, administrative, professional, outside sales, and computer employees). As provided for in the executive summary of the final rule:

“Since 1940, the regulations implementing the exemption have generally required each of the following three tests to be met : (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”) The Department of Labor … has long used the salary level test as a tool to help define the white collar exemption on the basis that employees paid less than the salary level are unlikely to be bona fide executive, administrative, or professional employees, and, conversely, that nearly all bona fide executive, administrative, and professional employees are paid at least that much. The salary level test provides certainty for employers and employees, as well as efficiency for government enforcement agencies. The salary level test’s usefulness, however, diminishes as the wages of employees entitled to overtime increase and inflation reduces the real value of the salary threshold.”

Executive Summary in the Final Rule

While the final rule does not change the “duties test”, it does level the playing field by increasing the salary level thresholds necessary under the “salary level test” so that employees who are protected by the FLSA’s minimum wage and overtime provisions are effectively distinguished from EAP employees exempted from such requirements due to the fact that inflation has reduced the real value of the wages of employees who should have been entitled to overtime wages over the past 15 years.

The final rule updates the earning thresholds necessary to exempt EAP employees by raising the standard weekly salary level from the currently enforced level of $455 per week to $684 per week (the equivalent to $35,568 per year for a full-year employee). This is a substantial increase from the current $23,660 annual salary that was last updated during the George W. Bush administration in 2004. The final rule further raises the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year which equals the 80th percentile of earnings of full-time salaried workers nationally. Additionally, the final rule allows employers to now count nondiscretionary bonuses and incentives payments (including commissions) toward satisfying up to 10% of the standard salary level paid annually to the employee – a reflection of pay practices now becoming more common in the workplace.

It is estimated that after the final rule goes into effect in 2020 that over a million currently exempt employees will, without some intervening action by their employers, gain overtime eligibility and that approximately 2 million white collar workers who are currently nonexempt because they do not satisfy the EAP duties tests but satisfy the salary level test will have their overtime-eligible status strengthened in 2020.

The Department of Labor further identified its commitment to update the standard salary level and the “highly compensated employees” total compensation levels every 4 years so to avoid having another 15 years go by without taking inflation and rises in salary into consideration.

Co-chair of REBA’s legislation section, Doug Troyer is a founding member of the Boston and Braintree firm of Moriarty, Troyer & Malloy, LLC and focuses his practice on condominium and real estate litigation, real estate development and permitting, land use litigation and employment law. He has successfully tried numerous cases before state and federal courts at both the trial and appellate levels and has represented clients in a variety of administrative proceedings and private dispute resolution forums. Doug can be contacted at troyer@lawmtm.com.

If you have an employment related question you can e-mail Douglas at dtroyer@lawmtm.com.

Amendments to Condominium Bylaws Must Be Reasonable

Thom Aylesworth

Prior articles from this office have addressed the importance of the preparation and organization needed for a condominium trust or association to amend its condominium documents—i.e., the master

deed and declaration of trust (or the bylaws that typically are included in the declaration of trust). But what happens when a carefully crafted amendment is approved by the required vote of unit owners and then is challenged in court by a dissenting unit owner? Under Massachusetts law, it is not enough that the condominium board strictly follow the amendment procedures set forth in the condominium documents. To survive a court challenge, the amendment must also satisfy the standard imposed by the courts when an amendment is challenged. That standard is “equitable reasonableness.”

Under Massachusetts law, it is not enough that the condominium board strictly follow the amendment procedures set forth in the condominium documents. To survive a court challenge, the amendment must also satisfy the standard imposed by the courts when an amendment is challenged. That standard is “equitable reasonableness.”

What does the term “equitable reasonableness” mean? The explanation from the courts does not give much guidance. According to the Massachusetts Supreme Judicial Court (borrowing the definition used by Florida courts), it means “[i]f a rule is reasonable the association can adopt it; if not, it cannot.” Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993) (citation omitted). The Court further explained, again borrowing from Florida law, that amendments imposing restrictions on unit owners are reasonable only when they are “reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” Id. (citation omitted). Furthermore, the amendment is invalid if it “violate[s] a right guaranteed by any fundamental public policy or constitutional provision.” Board of Managers of Old Colony Village Condo v. Preu, 80 Mass. App. Ct. 728, 730 (2011). Presumably, a condominium board that proposes a bylaw or other amendment believes it to be reasonable. The key point, however, is that in a court challenge, the person who decides whether an amendment is reasonable is the judge.

An interesting decision about a condominium bylaw amendment was recently issued by the Massachusetts Superior Court in the matter of JAH Realty, LLC v. Trustees of The 25 Channel Center Condominium Trust. At issue was a bylaw amendment that applied only to the condominium’s sole commercial use unit. After purchasing the commercial unit, the owner leased it to a child daycare business. Upon learning of this new commercial use, the insurance carrier for the condominium trust indicated it would not renew the condominium’s insurance policy without an indemnification agreement from the commercial unit owner. The condominium board was unable to reach an agreement with the commercial unit owner and instead proposed an amendment to the condominium bylaws that, among other things, required the commercial unit owner to indemnify the condominium trust against liability arising from the use of the commercial unit. The amendment was properly ratified by the unit owners.

The commercial unit owner filed a lawsuit, seeking to annul the bylaws amendment. The judge ruled in the board’s favor, finding that such an amendment satisfied the reasonableness test. The judge reasoned that commercial businesses, and particularly daycare operations, create legitimate liability concerns that do not exist with residential units, and therefore the indemnification amendment was valid. The judge was not swayed by the commercial unit owner’s argument that the indemnification obligation was imposed only after it had invested hundreds of thousands of dollars to remodel the unit to accommodate the daycare business. The judge concluded that the new daycare business use created the need for indemnification, and therefore it was not unreasonable for the condominium to adopt the amendment imposing the new obligation. Likewise, the judge was not persuaded by the fact that the commercial unit owner carried substantial insurance for the benefit of the condominium and board of trustees. The judge determined that, absent the indemnification amendment, the condominium would be at risk of losing its own insurance, and that consideration outweighed the large insurance benefits offered by the commercial unit owner. Last, the judge agreed with the board that the commercial unit owner’s concern as to a negative impact on the market value of its unit was outweighed by that owner’s knowledge, when purchasing its unit, that the board was obligated to maintain insurance for the condominium, and that it was reasonable for the board to “fulfill its mandate and protect the residential unit owners” by obtaining the amendment to avoid losing the condominium’s insurance policy.

But it was not a complete victory for the condominium board. The judge ruled in favor of the commercial unit owner and struck down certain provisions of the bylaws amendment, including a provision that gave the trustees sole discretion to charge the commercial unit owner for any increase in insurance premiums incurred by the trust in providing adequate insurance for the condominium. The judge suggested, however, it would be reasonable to adopt an amendment limiting such obligation to increased costs incurred by the trust as a direct consequence of the daycare facility use in the commercial unit.

When faced with the task of amending any of the governing documents of a condominium, it is critically important to follow the procedures as laid out in the documents. It is equally important to consider whether the proposed amendment will pass the reasonableness test if it is challenged in court. The analysis involves a broad spectrum of factors, and condominium boards considering an amendment are well advised to seek the advice of an attorney to learn more about whether the proposed amendment might survive such a challenge.

A copy of the court decision in JAH Realty LLC v. Trustees of The 25 Channel Center Condominium Trust may be found here at this link.

Originally posted August 17, 2019on tlawmtm.com.

https://www.lawmtm.com/amendments-condominium-bylaws.html

Associated with the Braintree firm of Moriarty, Troyer & Malloy, Thom Aylesworth has over twenty years of practice experience in Massachusetts and New Hampshire. He represents condominiums, corporations, and individuals in a wide range of matters with a primary focus on complex real estate litigation. His specific areas of practice include construction defects, condominium enforcement, zoning and land use litigation, beach rights, and other property disputes.  His email address is taylesworth@lawmtm.com

Can a Fence Establish Intent to Abandon an Easement?

By Johanna W. Schneider and Donna A. Mizrahi

How does the existence of a fence affect whether or not an easement has been abandoned?  The mere fact that a fence exists is

insufficient to prove abandonment.  Rather, specific evidence regarding the circumstances surrounding the erection of the fence –

including when the fence was erected and by whom – must be submitted to the court.  Ultimately, the inquiry turns on whether there was an intent to abandon the easement, and the party asserting abandonment bears the burden of proof on the issue. 

A Fence Erected on a Dominant Estate Usually

Signifies an Intent to Abandon an Easement

The existence of a fence sometimes can tip the scale when the continued validity of an easement is at issue.  To determine if an easement has been abandoned, courts evaluate whether there was an intent to abandon that easement, based on the surrounding circumstances and the conduct of the parties.  Carlson v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009).  Mere nonuse or ignorance of an easement are insufficient to demonstrate an intent to abandon; an affirmative act by the dominant estate owner (i.e., the easement holder) evidencing such intent is required.  Id.; Dubinsky v. Cama, 261 Mass. 47, 57 (1927). 

When a dominant estate owner erects a fence that blocks its own access to the easement, courts typically will find this constitutes an affirmative act sufficient to show an intent to abandon the easement.  For example, in Lasell Coll. v. Leonard, 32 Mass. App. Ct. 383, 390-91 (1992), the Appeals Court held that the plaintiff had abandoned his easement and intended “never again to make use of the easement”, in large part because he had constructed a fence separating his property from the disputed portion of the way which, together with another fence constructed by defendants’ predecessors in title, blocked access from plaintiff’s property to the disputed easement area.

Note, however, that not all fences are created equally and the nature and quality of the fence in question may detract from an abandonment argument.  For example, in a 2008 Land Court case, Judge Scheier determined that installation of a wooden fence was insufficiently permanent to establish abandonment of an easement where the fence rails were easily removable and allowed passage through the fence, and the fence itself was entirely removable.  Thompson v. White, No. 06 MISC. 327234 (KFS), 2008 WL 352459, at *6 (Mass. Land Ct. Feb. 11, 2008). 

Accordingly, when using a fence as evidence in an easement abandonment case, it is important to consider both the impact of the fence on use of the easement area and the type of fence that has been installed. 

An Easement Holder’s Failure to Object to a Fence Erected on a Servient Estate also Evidences an Intent to Abandon an Easement

Where a servient estate owner blocks the easement making its use impossible, and the easement holder fails to object or protest the obstruction, courts also will infer an intent to abandon an easement.  Carlson, 74 Mass. App. Ct. at 158-59.  This is especially true when there was a failure to object combined with long-term nonuse of the easement.  In Sindler v. William M. Bailey Co., 348 Mass. 589, 593 (1965), the Supreme Judicial Court held that an easement was abandoned where a disputed easement area was on the other side of a brook, the bridge over the brook disappeared and was not replaced, the easement was not used for 35 years, and the dominant estate owner acquiesced to a high chain link fence being built around the disputed area.  Similarly, in Carlson, the Appeals Court held that an easement was abandoned where easement holders exclusively used different routes for ingress and egress, took no steps to remove a stone wall or stockade fence blocking access to the easement, and did not object to plaintiffs’ use of the easement area as a lawn or driveway.  Thus, long-term acquiescence by the easement holder to a fence on a servient estate that blocks access to the easement is material in making an abandonment argument.

The Party Asserting Abandonment Bears the Burden of Demonstrating an Intent to Abandon

Whether or not an easement has been abandoned – by erection of a fence or otherwise –

is a question of fact, determined on a case-by-case basis.  Lund v. Cox, 281 Mass. 484, 492 (1933).  The mere existence of a fence is insufficient to show an intent to abandon.  Rather, a party asserting abandonment has the burden of demonstrating that the party who constructed the fence intended to abandon the easement.  Proulx v. D’Urso, 60 Mass. App. Ct. 701, 704 n.2 (2004). 

A party seeking to use the presence of a fence to prove abandonment must provide a court with specific facts regarding the circumstances of the fence’s construction.  The following questions will be particularly relevant to the court’s inquiry:

·         Who erected the fence?

·         When was the fence erected?

·         Where is the fence located relative to the easement route?

·         How effective is the fence in preventing passage along the easement route?  (For example, does the fence include a gate, and if so, is the gate locked?)

·         Did anyone object when the fence was erected?

·         Does the easement holder use the easement area that is blocked by the fence?

See Parlante v. Brooks, 363 Mass. 879 (1973).  In addition to witnesses’ personal knowledge, photographs, plans, and permit applications are helpful resources to consult to answer these questions.

Conclusion

The existence of a fence on either a dominant or servient estate often signifies the easement holder intended to abandon the easement, assuming the party seeking abandonment can carry its burden to prove the circumstances related to the erection and maintenance of the fence.

Johanna W. Schneider is counsel at Hemenway & Barnes LLP. She advises clients on real estate development permitting and land use and environmental disputes. Johanna represents public and private clients in real estate disputes at all stages of litigation, including mediations and appeals. Johanna can be reached at jschneider@hembar.com.  Donna A. Mizrahi is a litigation associate at Hemenway & Barnes LLP, focusing on real estate and probate disputes, as well as guardianship and conservatorship matters.  Donna regularly handles easement, adverse possession, and other residential real estate disputes.  Donna can be contacted at dmizrahi@hembar.com.