Infamous Two-Tier Condominium Concept Addressed by Massachusetts Land Court

Alexander Tsianatelis, Esq.

A recent Massachusetts Land Court case examined the validity of a “two-tier” condominium project. This two-tier condominium approach is also referred to

as a condominium within a condominium.

A two-tier condominium is a condominium comprised of a primary condominium (the “Primary Condominium”), pursuant to which a landowner then creates one or more condominiums within and subject to the primary condominium (each a “Secondary Condominium”). The two-tier condominium approach is particularly useful when a condominium developer intends to break out ownership, control, operation and/or maintenance of a subset of the Primary Condominium to one or more ownership types. For example, if the first floor of a condominium building is comprised of commercial businesses, and the floors above are comprised of residences, it may make sense to use a two-tier condominium to break out the ownership, control, operation and maintenance of the first floor commercial units to only those owners owning similar commercial condominium units in the building, leaving the ownership, control, operation and maintenance of the residential floors above to only those owners owing similar residential condominium units in the building. Each of the commercial and residential owners would then share in the ownership, control, operation and maintenance of those areas of the development shared by the two condominium unit owner types. In the recent Minieri case, the Primary Condominium designated ownership of certain buildings within a condominium development, and the Secondary Condominium designated ownership of the individual residential units in those buildings. Each of the Primary Condominium and Secondary Condominium owners also owned an undivided interest in certain common areas of the development.

The Minieri case reiterates that an owner of land may create a condominium by submitting his or her interest in land to the provisions of Massachusetts General Laws (“MGL”) Chapter 183A by recording a master deed that states the intent to create a condominium. According to Minieri, prior case law has further reiterated that recording a master deed in accordance with MGL Chapter 183A creates a hybrid form of interest in real property where a unit owner holds exclusive ownership and possession of his or her condominium unit, plus an undivided interest in the common areas defined by the master deed as a tenant in common with all other unit owners in the condominium.

One of the concerns in using a two-tier condominium structure arises from the requirement that pursuant to MGL Chapter 183A, Section 1, one must “submit” its land to the provisions of MGL Chapter 183A to create a condominium.

The concern in using a two-tier condominium structure is that in order to create a Secondary Condominium, the applicable owner needs to own an interest in land to submit in accordance with MGL Chapter 183A.  If the Primary Condominium owner already submitted the land to MGL Chapter 183A to create the Primary Condominium, a Secondary Condominium may not be valid because the declarant may not be able to submit the same interest to MGL Chapter 183A twice.

The plaintiff in Minieri attempted to exploit this concern to force an order equitably rescinding their purchase of individual condominium units in the Secondary Condominium. The court in Minieri denied the plaintiff’s order and confirmed the validity of the declarant’s two-tier condominium on the following basis:  (1) the master deed creating the Secondary Condominium described the land it submitted to MGL Chapter 183A as including the rights in the limited common elements or limited common areas of the Primary Condominium; (2) the declarant submitted an undivided interest in the limited common elements and areas of the Primary Condominium to the Secondary Condominium such that both the Primary Condominium and Secondary Condominium held ownership rights in those common areas; and (3) the Secondary Condominium’s interest in the common areas of the Primary Condominium satisfies the requirement of MGL Chapter 183A that the Secondary Condominium include an interest in land.

The court’s decision goes a long way towards clarifying and resolving the potential concern in developing a two-tier condominium.

An associate at Rudolph Friedman LLP, Alex Tsianatelis focuses his practice on commercial and residential real estate acquisitions, dispositions, financings, development, operations, maintenance and leasing. Alex has negotiated numerous complex multi-million-dollar real estate transactions.  Alex can be contacted at atsianatelis@rflawyers.com.

  

Land Court Decision Acknowledges the Vagaries of Municipal Permitting

 Paul F. Alphen

In a 2009 Appeals Court decision, Paul Cornell lost his rights under a dimensional variance because he failed to “exercise” his variance

within one year, although during that time period he had his land surveyed, obtained ANR endorsement, recorded the plan, engaged an engineer to prepare a septic plan and map wetlands, obtained a permit from the Board of Health and obtained an Order of Conditions. Unfortunately, for Mr. Cornell to run that gauntlet, it took 15 months, and the Dracut Building Commissioner denied his permit.  See Cornell v. Bd. of Appeals of Dracut, 72 Mass. App. Ct. 390, 391, 892 N.E.2d 746, 748 (2008), aff'd, 453 Mass. 888, 906 N.E.2d 334 (2009).

Land Court Associate Justice Kevin T. Smith reached a far less draconian conclusion in a Plymouth case involving Zoning Bylaw provisions containing time limits. In Rawinski, Tr. of Rawinski Fam. Realty Tr. v. Conner, No. 20 MISC 000333 (KTS), 2021 WL 3355484, (Mass. Land Ct. Aug. 3, 2021), an abutter tried to prevent her neighbor from rebuilding a pre-existing non-conforming waterfront cottage on Saquish Beach rendered inhabitable by a nor’easter in March of 2018.

One of the relevant provisions of the Zoning Bylaw states that: “[a] Pre-existing Nonconforming Use or Structure which has not been used for a period of two years shall lose its protected status and be subject to all provisions of this Bylaw.” The Plaintiff/abutter appealed the issuance of the building permit to reconstruct the dwelling which was issued two years and two months after the storm.

The Court described the many uses that the property owners had made of their land “in ways that are consistent with a residential use even though the cottage was rendered uninhabitable by the March 2018 storm”, including the cottage remained on the lot; the property owner promptly pursued the many necessary permits required for the demolition and replacement of the cottage and the septic system; the owners secured the damaged cottage by erecting a fence around it; they constructed a shed and a make-shift deck on which they placed a grill and folding chairs which the Plaintiff acknowledged in deposition that she observed in 2018, 2019, and 2020; and they undertook regular seasonal clean up of the property.

Judge Smith concluded that the uses of the property were consistent with residential uses, notwithstanding that the dwelling was uninhabitable.  The Judge refused to require that the cottage be “habitable” to maintain it zoning protection whereas the zoning bylaw did not use the word “habitable”.  And unlike the decision in Cornell, Judge Smith stated: “Moreover, the extended period of time between the March 2018 storm and the issuance of the building permit in question was due, at least in part, to the vagaries of the local permitting process which required multiple permits from multiple local boards before reconstruction of the cottage could commence.” Ibid at 8.

Inasmuch as two years is a relatively short time period accomplish everything that has to be done these days to draw plans, obtain permits, and contract for the reconstruction of a building, it was nice to see the Court take a practical approach to the situation.

A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is also a member of the Executive Committee of the Abstract Club. He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination. As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com.

Land Court Department of the Massachusetts Trial Court

By Hon. Gordon H. Piper

I am honored to have been asked to offer a few initial observations about the Land Court Department, from my new perch as its Chief

Justice, a role I assumed at the end of October last year.  I thank Trial Court Chief Justice Paula M. Carey for selecting me to serve.

We at the Land Court relish our status as the smallest of the seven departments of the Trial Court. Our seven justices hear cases from every corner of the Commonwealth.  We “have gavel, will travel,” trying cases from Pittsfield to Nantucket, and in many courthouses in between.  Our center of gravity does remain the high-rise courthouse on Pemberton Square in Boston, where most hearings take place, the Recorder’s office is located, and the court’s legal, title examination and surveying experts are based. 

We also are enthusiastic about our responsibilities to adjudicate cases placed in our specialized jurisdiction. Our justices--and everyone else at the Land Court--appreciate the trust placed in us to understand and apply the law in a broad range of real estate related cases.  We understand that lawyers and parties come to the Land Court expecting us to be up to speed and engaged on the subject matter with which we have been entrusted.  While many of our judicial colleagues sitting in other departments of the Trial Court (and even some members of our own families) may quietly wonder, looking at the types of cases we hear, how the judges of the Land Court get up and come to work each morning, I assure you that we do so with gusto.  We value role we play in the development of the common law of real estate in Massachusetts.  

I have taken on my new job at a time of considerable change and opportunity at the court.  My immediate predecessor, Chief Justice Judith C. Cutler, reached the age of retirement after a decade on the bench, the last five years as our Chief.  And her predecessor, Chief Justice Karyn F. Scheier, also retired at the end of 2018; she had been a member of the court since 1994, including ten years as Chief Justice.  These two distinguished jurists left indelible positive marks on our court and the Commonwealth’s judicial system. 

We were delighted to welcome in January of this year Justice Jennifer S. D. Roberts and Justice Diane R. Rubin, who came to the Land Court after long years of prominent private practice and are leaping into their new positions, taking on very ample caseloads.  They join four other greatly accomplished and respected Associate Justices, Hon. Keith C. Long, Hon. Robert B. Foster, Hon. Howard P. Speicher, and Hon. Michael D. Vhay.  It is good to have our right-sized court up to its full fighting strength, at least for now. And I am grateful not only for the talent and dedication of my judicial colleagues, but of the entire leadership and staff of the court, including (but by no means limited to) Recorder Deborah J. Patterson, Deputy Court Administrator Jill K. Ziter, Deputy Recorder Ellen M. Kelley, Chief Title Examiner Edmund A. Williams, and Chief Surveyor Stephen LaMonica. 

Improvements over the last several years in the general and real estate economies of the Commonwealth have brought a change in the mix of the court’s work.  When the real estate markets were moribund, and property values stayed stagnant, a disproportionate share of the court’s work concerned mortgage foreclosure and tax lien foreclosure matters, and others arising out of transactions and development plans in distress. Servicemembers Civil Relief Act cases have declined somewhat from the peak of more than 30,000 new cases filed in a year. More recently, an increasing percentage of our case load is driven by the state’s vibrant development activity–zoning and subdivision permit appeals, including some arising out of very large and complicated project plans.  We also have rapid growth in the court’s volume of partition cases, with common owners of land seeking the court’s aid in equitably dividing their joint real estate asset. Both land use and partition cases demand additional courtroom time, and more legal research and writing, continuing the pressure on the judges and staff of the court to keep up. 

The court, which labors a bit with an undeserved reputation as a place of green eyeshades and quill pens, is moving ahead with a number of twenty-first century innovations.  Like the rest of the Trial Court, the Land Court has embarked on e-filing of cases.  We are underway with an initial pilot program in our Servicemembers Civil Relief Act case type, our largest by volume, and expect soon to expand that pilot to include more filers, before opening those cases to e-filing by all lawyers and firms.  Following that, we intend to pilot e-filing in another large category of cases, those seeking the foreclosure of the right of redemption following real estate tax lien takings.  Over the next several years we will push to bring e-filing to a wide variety of the court’s docket, including most of our Miscellaneous case types.  The density of pleadings filed in many Land Court cases–a number of which include large plans, lengthy reports, and other challenging exhibits–may present some challenges, but the court shares with the bar the goal of being able over the coming years to have filed and accessed on line most of our ordinary case types.  We soon will launch in at least one of the court’s sessions a trial of a “judicial tools” setup, which should allow the judge and clerk in that session to work with digital versions of many of the filings in the cases that judge is hearing.

We also have commenced work on modernizing the computer systems used by our Surveying Department, with the intention to have current drafting and survey production and indexing capabilities in use.  The court is the repository of registered land plans from across Massachusetts dating back to soon after the founding of the Land Court in 1898, and, in later phases of this project, we hope to have digitized many of these critical plans, to enhance access to them by the bar, surveyors, and the public.

In a continuing effort to provide more efficient hearing and disposition of contested cases, a committee now chaired by Justice Speicher is convening, and will look over the court’s rules, standing orders, and procedural practices, building on past rules changes to expand opportunities to expedite, simplify, and reduce the cost of litigation in the Land Court.  We anticipate soliciting the involvement of the bar and other stake holders in this effort over time.  A related effort will look over the court’s mediation and other alternative dispute resolution process and methods.  While we of course will insure every litigant the chance to have his or her case decided by the court, we acutely are aware that not infrequently the best resolution is one the parties themselves reach.  We intend to seek out more and better ways to facilitate that.

One area of the court’s business that continues to grow in volume and complexity are the many cases subsequent to registration, our “S-cases,” in which the court is asked to make orders relative to the certificates of title for registered land.  Our long-time Chief Title Examiner, Edmund Williams, soon will be retiring after decades of extraordinary service to the court, the conveyancing bar, and the citizens of the Commonwealth.  He has helped the court issue extensive guidelines and guidance to the court’s land registration districts and the real estate bar.  His successor, once selected and in place, will be challenged to hold to the high standards of the court’s Title Examination Department, and to continue positive strides made in the processing of the important S-case petitions.  The last comprehensive revision to the court’s Guidelines on Registered Land issued in 2009, and the new Chief Title Examiner will work closely with the justices of the Land Court, with the input of the court’s Assistant Recorders and the bar, to make any needed updates and expansions to those guidelines.

My new post as Chief Justice of the Land Court presents exciting opportunities and challenges.  I am grateful to have the very best judicial colleagues, court leaders, and so many other members of the Land Court team working alongside me, helping the court achieve great things for the users of the court and the citizens we serve.

A former president of the association, Chief Justice  Piper has served on the Land Court since 2002.  Trial Court Chief Justice Paula M. Carey appointed him Chief Justice last October.  This article originally appeared in the Boston Bar Journal, a publication of the Boston Bar Association.

A Discussion with New Land Court Chief Justice, Gordon Piper (Video)

Musings of a History Nerd

By Diane R. Rubin

An informal survey of lawyers at my firm indicates that a sizable percentage were history majors as

undergrads.  That includes me.  I was a U.S. history major at Brandeis University, so when Peter Wittenborg suggested that a brief history of the Land Court might be a topic of interest for my President’s message, I dove in.  

Many of us can date ourselves by where the Land Court was located when we first practiced there.  My first appearance was before Judge Scheier when the “old” Suffolk County Courthouse was its home and had been so for decades, since 1911.  At the time of my first appearance, there were only four judges of the Land Court; today there are seven.  In recent years, the Land Court has spent time in both the Edward Brooke Courthouse at New Chardon Street (1999) and on Causeway Street (2003), before settling into its current digs in the “new” Suffolk County Courthouse in Pemberton Square (2010).

 Many of us take the Land Court and its robust jurisdiction for granted, but that jurisdiction has evolved over time, just as the practice of real estate law has evolved.  The Land Court came into being in 1898 when legislation was enacted creating what was initially known as the Court of Registration with the limited purpose of providing a system of land registration, based on the Torrens System of Land Registration.  Over time, the Land Court’s jurisdiction has expanded to encompass tax foreclosure, zoning appeals, subdivision and boundary disputes.  In recent years, we have seen Land Court jurisdiction expand to include concurrent jurisdiction with the Superior Court over permit and development disputes, notary legislation, partition cases and even withdrawal of some land from registration.  Initially, Land Court decisions were reviewable on appeal to the Superior Court, but today it is a full-fledged trial court.  

The real estate bar in Massachusetts has been a long-time friend and supporter of the Land Court.  REBA (and its predecessor the Massachusetts Conveyancers Association) and the Abstract Club have collaborated with the Land Court to maintain standards of excellence as our practices have evolved into the electronic age.  I was reminded of this close relationship when Peter Wittenborg shared with me a short history of the Abstract Club.  This jam-packed booklet includes colorful entries by the esteemed Charles Rackemann, William Payson and Mark Titlebaum, dating from 1908, 1972 and 1986, respectively.  I would like to share a few excerpts.  

In 1972, William Payson provided a prescient vision when he cautioned that “Prophets of doom from time to time remind us as to what the future holds for conveyancers.  They envisage a time when almost no one will be pushing a pen in the Registry of Deeds and when all that will be necessary to obtain the pertinent facts respecting a title will be to a push a few buttons . . . and the needed information will pop out on a broad tape or tube.”  Mr. Payson did not regret this change but saw “a rosier and more productive future,” where the task of conveyancers would be “limited to matters of law, interpretation and draftsmanship.”  More than a decade later, Mark Titlebaum forecast that the principal issues before the real estate bar would be those “dealing with the environment and land use or dealing with financial instruments used in real estate transactions.” 

Both prognostications have turned out to be true.  Our practices and the Land Court have grown to address the real property concerns of our modern lives.  In preparing this brief history, I relied on and give thanks to A Brief History of the Land Court, by Glendon J. Busher, Jr. as appearing on the Land Court’s website, as well as the prodigious memory of Ed Smith, REBA’s sage long-time lobbyist.  

A partner at Prince Lobel Tye LLP and a founding chair of the Association’s condominium law and practice section, Diane Rubin currently serves as REBA’s president and is also a member of REBA Dispute Resolution’s panel of neutrals. She has extensive experience as construction and real estate counsel to private, public, and nonprofit clients including property developers and other owners, notably colleges, universities, awarding authorities, and condominium associations.  Diane can be contacted at drubin@princelobel.com

Standing in Plaintiff’s Shoes: Challenging a Personal Representative’s Standing Under 40A.

By Kathleen M.  Heyer

“The abutter doesn’t have standing” is a frequent, but often unsuccessful, argument made when a neighbor appeals a zoning board decision under G.L. c. 40A, § 17.  But what happens when

the named plaintiff passes away unexpectedly after filing an appeal?  How is standing determined? And, is it possible to challenge the standing of a personal representative of the plaintiff’s estate?  A recent Land Court decision, Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), demonstrates that the standing requirement passes on to the personal representative and that the standard must still be met.  In this case, the lack of knowledge of harm testified to by the personal representative to the abutting property even with the presumption of standing enjoyed by a direct abutter, the appeal was successfully challenged on standing grounds.   

The standard for standing is well-known.  To have standing, one must be a “person aggrieved.” G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117 (2011).  Abutters and abutters to abutters within 300 feet of the subject property are entitled to a rebuttable presumption that they are aggrieved within the meaning of the statute.  Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996).  That presumption is rebutted if the defendant(s) can provide evidence that the plaintiff is not aggrieved.  Marotta v. Bd. of Appeals, 336 Mass. 199, 204 (1957).  The presumption can be rebutted by demonstrating “that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect,” 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012), the offering of affirmative evidence that rebuts the presumption, id. at 703, by “by showing, in the negative, that the plaintiff lacks any factual foundation for asserting a claim of aggrievement.”  Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).  “Once the presumption of standing has been rebutted successfully, the plaintiff then would have the burden of presenting credible evidence to substantiate the allegations of aggrievement.”  81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline,  703 n.15 (2012).

In Zuk v. Pairseau, an abutter appealed a decision of the Town of Danvers Board of Appeals approving a modification of a site plan of a long-existing nursing home which, among other changes, permitted additional parking spaces on the nursing home property with no increase in impervious pavement.  Shortly after the Complaint was filed, the abutter passed away.  His son, personal representative of the estate, was substituted as plaintiff several months later.  Defendants, who had unsuccessfully challenged plaintiff’s standing on account of his death, conducted discovery before challenging the son’s standing in a motion for summary judgment.  The defendants’ standing argument raised the following concerns: to what extent does the personal representative of an estate need to demonstrate individual standing?  Can a personal representative rely upon the aggrievement claimed by the deceased? 

To a certain extent, yes, the personal representative may adopt the position taken by the deceased, but, this does not provide a free pass guaranteeing court review of the appeal.  In Zuk, the son as personal representative of his father’s estate owned the abutting property, and therefore was entitled to a presumption of aggrievement.  However, the defendants successfully rebutted the presumption by demonstrating, after discovery, that the son had no reasonable expectation of proving a legally cognizable injury.  The son’s answers to interrogatories and deposition testimony demonstrated that, whatever aggrievement his father may have thought existed, his son was unaware of any potential harm to his property as a result of the Board’s decision.  Rather, to the extent that the son claimed aggrievement stemming from certain claimed procedural errors, he did “not articulate[] anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw.”  Zuk, at 13.  

To bolster his position, the son filed an affidavit in opposition to the defendants’ motion for summary judgment.  In this affidavit, the son adopted his deceased father’s statements of aggrievement, as set forth in the complaint and in the answers to interrogatories which his counsel had prepared, ostensibly based upon conversations with the deceased.  However, the affidavit was ineffective because a person cannot contradict by affidavit statements previously made under oath at deposition. O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993).  The son explicitly testified at his deposition that he had no knowledge of any harm that would result from the Board’s decision.  The affidavit could not be used to contradict those statements; whatever knowledge the father may have had was not passed on to the son, who claimed “aggrievement on the grounds that the [Board] Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity.”  Zuk, at 14.  As the Court so aptly stated, this “does not go far enough to allege a harm to a legally protected interest.”  Id. 

Though the plaintiff lost in this instance, it is not unreasonable to expect that a similar situation may arise again.  When can the standing of a personal representative, substituted in for a deceased plaintiff, be subject to challenge: immediately after appointment?  In Zuk, after the death of the original plaintiff, agreed deadlines were set for discovery deadline and the filing of dispositive motions.  Though not an issue in Zuk, there could be conflict after the death of a party between the defendants seeking to move the case forward as quickly as possible and a personal representative plaintiff seeking additional time.   

Active in many REBA sections, Kathleen Heyer practices with the Andover firm of Johnson & Borenstein LLC.  She can be contacted at kathleen.heyer@jbllclaw.com. 

Preparing for a Bench Trial

Click Here for the Judge’s PowerPoint Presentation

Trial advocacy programs show you how to dazzle, impress and even persuade a jury.  What about bench trials? Does one prepare any differently? Are simple themes as important?  Should one pay less, or greater, attention to exhibits and chalks? What makes for effective openings and closings, when the judge is the only one who counts?  Should one still sequester witnesses? Should direct and cross-examination proceed differently?  What about experts? 

Judge Michael Vhay shares his thoughts about these issues now that he has seen them from both sides of the bench. He has been a justice of the Land Court since March 2017. Before then he had tried cases to juries and judges in federal and state courts for 24 years. 

Issues Involved in Adverse Possession & Prescriptive Easement Cases with Judge Keith C. Long (Video)

Does your practice include claims of adverse possession or prescriptive easement?  Have you ever been surprised when a survey reveals that boundary lines are not quite what was thought, had words with a neighbor who contends he has rights in your property because of long use, or believe you have rights in his?  If so, you'll want to come to the next Litigation Section Open Meeting where their issues will be discussed from the perspective of a trial judge hearing them.  Although their elements are simply stated, their application is often difficult factually, doctrinally, and as a practical matter of enforcement. 

Discovery Due Diligence Leads to Favorable Decision in Land Court

By Kimberly A.  Bielan

Cases in which the court must determine whether use of a property is consistent with an alleged preexisting, nonconforming use are “often heavily fact-dependent.”  Nevertheless, when the undisputed facts clearly indicate a failure to satisfy at least one of the prongs of the so-called Powers test, the court may determine the question as a matter of law.  In a recent case that our office litigated in the Land Court, HAYR, LLC v. Nigosian, No. 15 MISC 000103 (HPS), No. 15 MISC 000242 (HPS), 2017 WL 3426681 (Mass. Land Ct. Aug. 9, 2017) (Speicher, J.), this was the precise issue before the Court.  In its detailed analysis, the Land Court ultimately held that the Defendants, Dominic Murgo and PJM Family Enterprises LLC (collectively “PJM”), had “failed to indicate that any evidence will be forthcoming at trial tending to show that their present nonconforming use is not a change or substantial extension of the use protected under G.L. c. 40A, § 6.”

The Plaintiff, HAYR, LLC (“HAYR”), is undertaking a development of a large residential subdivision in the Town of Millbury, which is located directly to the south of Worcester.  HAYR’s property is not located far from Route 20 in Worcester, and the property immediately adjacent to its northwesterly property boundary, which is owned by PJM, has frontage on Route 20.  While PJM’s property is nearly 6 acres in size, it is only the front portion that is located in Worcester; the rear portion, consisting of approximately three acres and lacking street frontage, is located in Millbury’s Suburban IV Zoning District.  PJM was using the property to store approximately 40 live-floor trailers, which it employs to haul municipal solid waste.  As HAYR utilized its neighboring property, it began to experience harms associated with significant truck noise and odors.

Experiencing impacts from PJM’s use of its property, HAYR investigated to determine whether the use thereof was lawful.  HAYR’s research revealed that use of the property as a trucking terminal was not permissible in Millbury’s Suburban IV Zoning District and sought zoning relief.  Millbury’s Zoning Enforcement Officer responded to the request, issuing a cease and desist order to PJM.  PJM subsequently appealed the cease and desist order to the Board of Appeals who rendered two decisions – first, a decision purporting to grant a variance to authorize the ongoing use of the PJM property as a trucking terminal; and second, a corrected decision purporting to overturn the cease and desist order and finding that the use of the property as a truck terminal had existed since the mid-1970s, was preexisting, nonconforming, and could be continued as a matter of right.  HAYR appealed both Board of Appeals decisions to the Land Court.

As a preliminary matter, HAYR sought to identify the effective date of the zoning bylaw that rendered PJM’s use of its property lawfully preexisting, nonconforming.  The Board of Appeals had apparently acted upon the belief that the relevant date was April 1981.  In conducting discovery, HAYR obtained all the zoning amendments and zoning maps relevant to the Suburban IV District from Millbury.  Those documents revealed that, since the initial adoption of the town’s zoning bylaw in 1957, the use of PJM’s property as a trucking terminal and/or as a contractor’s yard had never been permissible in the Suburban IV District.  This meant that, in order for PJM to establish that its use was preexisting, nonconforming, it would need to trace its use back to the mid-1950s, rather than the mid-1970s.  

After identifying the effective date of the applicable zoning bylaw, HAYR moved for summary judgment on the basis that, on the undisputed facts in the record, PJM would be unable to satisfy its burden at trial to satisfy the Powers test.  Powers sets forth the standard for determining whether a preexisting, nonconforming use is consistent with the use being undertaken on a property prior to a change in zoning and, therefore, may continue.  “A change that is so substantial either in degree or physical expansion so as to constitute, in effect, a different use, will be determined to be ‘different in kind’ in its effect on the neighborhood, and therefore not entitled to § 6 protection,”

Viewing the summary judgment record in the light most favorable to PJM, the non-moving party, the Court performed an analysis to determine whether PJM’s use was consistent with an apparent gasoline filling service use that had been undertaken on the Worcester portion of the PJM property in the mid-1950s.

First, the Court analyzed whether there was a difference in the quality, character, and degree of the use.  As part of its inquiry, the Court noted that “an expansion of the physical area in which a use takes place will typically fail to meet these criteria”.  In performing its analysis, the Court (and the parties) relied heavily upon stipulated aerial photographs of the subject property.  Such aerials, which dated back to 1938, clearly and indisputably demonstrated a significant expansion and change in the use of the property from the mid-1950s to present day.  As noted by the Court in is decision, the extent of clearing as of 1957 had seen “a pronounced physical expansion” to the present day, necessitating “a finding of change or substantial extension of the degree of use as a matter of law.” (emphasis added)

Second, the Court determined that the current use of the property by PJM did not reflect the nature and purpose of its prior use.  HAYR contended that, when zoning was adopted in Millbury in 1957, the site was not used as a truck terminal, construction materials storage yard, or anything remotely similar.  While PJM countered this contention, it relied upon an unverified report.  Further, the Court concluded that, even if it had considered the report, PJM would have fared no better.  “A small filling station is no more a cognizable predecessor to a large truck terminal for § 6 purposes than a tailor shop doing some cleaning of clothes is to a large dry cleaning plant.”

Accordingly, in light of the foregoing determinations, the Court found and ruled that “the defendants’ current use of the entire Locus as a truck terminal for forty live-floor trailers that transport municipal waste, and storage of other construction vehicles and construction materials, is different in purpose and nature from a use of the property as a gasoline filling station on a small portion of the Locus.  Furthermore, the exponential physical expansion of the area occupied would render the current use different in kind in any event.”

While this decision is consistent with previous cases discussing the inquiry to be undertaken to determine whether there has been an unlawful change to a preexisting, nonconforming use, it nonetheless sheds light on the importance of using the tools available in discovery to assist in streamlining a case.  Although it was not HAYR’s burden to establish that PJM’s use of its property was no longer protected as a preexisting, nonconforming use (instead, it is the party claiming protected status as a preexisting, nonconforming use that must prove grandfathering protection, HAYR nonetheless undertook discovery on this issue to identify whether PJM would be able to satisfy its burden.  This investigation revealed that the presumed effective date of the zoning bylaw differed substantially from the actual effective date, and PJM had produced no evidence that would enable it to establish a consistent use dating back to the mid-1950s.  It also enabled HAYR to identify the significance of the aerial photographs and the role that they ultimately played in a favorable decision.

Kim Bielan is an associate in the litigation and zoning and land use departments of the Braintree-based firm of Moriarty, Troyer & Malloy, LLC.  She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups; she can be contacted by email at kbielan@lawmtm.com.

Neighbor's Claim to Own the Shoreline of a Filled Tidal Pond Rejected by Land Court

By Nathaniel Stevens

Following a two day trial, Hon. Robert Foster of the Land Court recently rejected an abutter’s claim to the portion of a Falmouth

family’s lot where they plan to build an addition to their seasonal cottage. The Court found that the presumption of land ownership to low water, derived by the Colonial Ordinances, did not apply. The Court invoked the doctrine of adverse possession by color of title to find for the Falmouth family on an alternative claim.

The case is Nancy Evans, Trustee of the NWW-2 Realty Trust v. Michael J. Jackson, Jr. and Jane L. Jackson, Trustees of the Jackpot Trust, 13 MISC 478683 (RBF), June 15, 2016. The decision implicates historic law in a modern context, waterfront legal principles, and invoked a rare form of adverse possession called adverse possession by color of title.

The area in dispute was once part of a tidal pond on Chapoquoit

Island filled in the late 1920’s as part of a dredging project in nearby West Falmouth Harbor. The abutter, plaintiff trustee Nancy Evans, asserted that she owned an approximately 5,300 square foot portion of the family’s Jackpot Trust land.

Evans claimed through the language in her deed and other deeds referenced by her deed. She tried to rely on the presumption of law derived from the Colonial Ordinance of 1641 – 1647 that when waterfront property is conveyed, the flats – the area between the low water and high water marks – are conveyed along with the uplands.

Evans’ family had owned her lot (as well as two abutting properties) since 1930 but had never disputed the property boundary with the Trust. Evans commenced her Land Court claim in 2014 shortly learning of the Trust’s plans for an addition to its cottage. The 1890 plan of lots for Chapoquoit Island in that area of Falmouth showed two ponds, an area called Chapoquoit Harbor, and Buzzards Bay. Roughly parallel to a majority of the shorelines of these waterbodies was a feature noted as “edge of bank”, including along Evans’ property.

Evans alleged that her residential lot was larger, including the disputed area, because deeds to her property described the boundary with the Jackpot Trust land and one formerly filled pond as being “by the edge of the bank” as per the 1890 plan.

The Trust denied Evans’ allegations and filed two counterclaims: that its deed gave it ownership of the disputed area, and, even if it did not, it had gained title through the doctrine of adverse possession.

Following a view and trial with testimony from two title experts, two professional land surveyors, and five other witnesses, Judge Foster ruled in favor of the Jackpot Trust on both theories. Evans did not testify. In the wording of Evans’ deed, earlier deeds to her property, other deeds by the original developers of the area, and persuasive testimony of the defendant’s title expert, Judge Foster found that there was no intention to include in the conveyance of Evans’ property the area beyond edge of bank down to the low water mark of the filled tidal pond.

These facts were sufficient to successfully rebut the presumption derived from the Colonial Ordinance of 1641-1647 that the tidal flats are conveyed with the uplands of coastal property.

Although he did not need to (because he ruled the Trust owned the disputed area through record title), Judge Foster also considered the Trust’s second counterclaim of title to the disputed area by adverse possession.

Based on the testimony of a trustee and beneficiary of the Trust, his brother, two neighbors, and a former regular summer renter of the property, Judge Foster ruled that the Trust and its predecessors in title exercised actual, open, notorious, exclusive, and adverse possession of the disputed area for a period of well over 20 years, thus gaining title to it.

Interestingly, Judge Foster went on to rule that the Trust gained title to those portions of its property outside of the disputed area through the doctrine of adverse possession under “claim of title” or “color of title”. This rarely-invoked doctrine serves to overcome the issue in adverse possession law that one can gain title only to the area of land that is actually occupied.

Under this “color of title” doctrine, a possessor of land asserts ownership based on a deed or other land conveyance instrument that purports to convey title to the entirety of a parcel, even if it does not because of a defect in title. This doctrine grants the possessor constructive possession to the entire parcel described in the document, even if the possessor did not occupy all parts of the land.

Here, deeds to the Trust contained a metes and bounds description of the land as shown on a recorded 1958 Approval Not Required plan. Evans never challenged those land descriptions. Judge Foster found persuasive that the Trust and its predecessors had paid taxes on its land and that the Town Assessors maps show boundaries that include the disputed area on the Trust land.

The unsuccessful plaintiff Evans did not appeal Judge Foster’s Land Court decision.

A member of the Association’s environmental law section, Nate Stevens practices with the Boston firm of McGregor & Legere, P.C.  He represents clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel can be contacted by email at nstevens@mcgregorlaw.com

Land Court Holds Condominium Unit Owners Cannot Establish Easement By Necessity Over Neighboring Unit Owners’ Exclusive Use Area

By Kimberly A. Bielan

 

A recent decision issued by Chief Justice Cutler of the Land Court considered a claim by condominium unit owners that they had acquired an implied easement by necessity over a portion of the

common area that had been designated for exclusive use by neighboring unit owners. In Vuzman v. Kales, No. 15 MISC 000348 (JCC), 2017 WL 2917798 (Mass. Land Ct. July 7, 2017) (Cutler, J.), the Land Court allowed the defendants-unit owners’ motion for judgment on the pleadings and held that no easement by necessity had been created.

Vuzman concerns a two-unit residential condominium located in Newton. Created in 1991, the 129-131 Cypress Street Condominium is comprised of one large building containing the two units, a barn and outdoor land area. At the time of creation of the Condominium, all of the outdoor land area was designated as “exclusive right area” for each of the units. Specifically, the plaintiffs’ exclusive use area (or, “limited common area” under G.L. c. 183A, § 1) is located at the rear of the Condominium, accessed by a thin strip of land along the Condominium’s southeasterly property boundary. The defendants’ exclusive use area is adjacent to the north of the plaintiffs’ exclusive use area, surrounding the residential building. A site plan was recorded with the Condominium’s Master Deed and clearly delineated each unit’s respective exclusive use area.

The dispute between the unit owners arose when the defendants informed the plaintiffs that they intended to remove certain stairs in their exclusive use area and to install a fence around the backyard portion thereof. The plaintiffs, who alleged that they utilized the stairs located on their neighboring unit owners’ exclusive use area in order to access their exclusive use area to the rear, objected to the proposed changes. The plaintiffs alleged that the installation of the fence would entirely eliminate their ability to safely access and utilize their exclusive use area at the rear of the Condominium’s common area.

After quickly disposing of the plaintiffs’ claims alleging violations of the provisions of the Condominium’s Master Deed and Declaration of Trust, the Court then considered the unit owners’ allegation that they hold an “implied easement by necessity” through their neighboring condominium unit owners’ exclusive right area because they otherwise cannot access their exclusive use area to the rear.

In considering this argument, the Court acknowledged that ownership of a condominium unit is a “hybrid interest in real estate, entitling the owner to both exclusive possession of his unit and an undivided interest as tenant in common with other unit owners in the common areas.” Id. at *7. This situation, according to the Court, is inapposite to – and does not meet the requirements for – creation of an easement by implication or necessity. Id., quoting New England Cont’l Media,Inc. v. Town of Milton, 32 Mass. App. Ct. 374, 378 (1992) (“An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel.”); Kitras v. Town of Aquinnah, 474 Mass. 132, 140 (2016) (“A presumption of easement by necessity arises upon a showing of the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.”). “Simply put, because this case involves a condominium development submitted to Chapter 183A, which does not, by its very nature, involve a division of land into separately owned parcels, the common law theory of implied easements does not apply here. From the time of execution of a master deed, the rights in and to the condominium are defined by the master deed and Chapter 183A of the General Laws.” Id.

The Court concluded that the Master Deed’s designation of exclusive use areas did not constitute a division of the Condominium’s common area into separate ownership or constitute a severance of unity of title of the common area, recognizing foundational principles of condominium law. As the intent of the Master Deed was clear in its designation of the exclusive use areas for each unit, any difficulty that the plaintiffs encountered in obtaining access to their rear exclusive use area was of no import.

The Court’s decision in Vuzman makes clear that it views the allegation concerning the purported creation of implied easements over a Condominium’s common area, including the exclusive use portions thereof, different from the traditional scenario for creation of such easements under common law. While the Vuzman decision reaches the correct conclusion based upon the facts in the case – and, particularly in light of the fact that the plaintiffs do have access to the rear of the Condominium common area over an exclusive use strip of land – it does at least raise the question of how the Court would handle a similar circumstance in which a unit owner was deeded an exclusive use area with no means of access but over another unit owner’s exclusive use area. It appears that, under the reasoning of Vuzman, the Court would look upon any claim to an implied easement by necessity as inapplicable under such circumstances.

Originally posted July 26, 2017 on tlawmtm.com:
http://lawmtm.com/condominium-easements.html

Kim Bielan is an associate in the litigation and zoning and land use departments at Moriarty Troyer & Malloy LLC. She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She can be contacted by email at kbielan@lawmtm.com. 

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