In a straight-forward application of the relevant recording statute, the Massachusetts Land Court has held that a son who received a deed to the land without notice of a prior reverse mortgage is not subject to the mortgage since it was not recorded and he had no other means to achieve notice of it. https://www.lexisnexis.com/clients/macourts/ 57 N.E.3d 1065 (Mass. App. Ct. 2016).
The Utah Supreme Court joined others in adopting the modern view that servitudes (restrictive covenants) should be interpreted to effectuate the intent of the parties, rather than interpreting them strictly so as to maximize the rights of the owner of the burdened property, as the traditional rule held. Fort Pierce Ind. Park Phases II, III & IV Owners Ass’n v. Shakespeare, (Utah 2016).
In Bac Home Loans Servicing, L.P. v. Savankham, 2016 Mass. LCR LEXIS 86 (Mass. Land Ct. 2016), a mother gave a bank a mortgage on her joint tenancy interest in property she shared with her two children. The children did not know about or participate in the transaction. Apparently, the bank thought it was getting a mortgage on the whole property rather than just the joint tenancy interest of one joint tenant and sought to reform the documents to reflect that understanding. However, because there was no proof that all parties understood the transaction this way, it was a unilateral mistake of the bank rather than a mutual mistake of all owners and the lender. The court refused to reform the documents to reflect the arrangement the bank wanted or thought it was getting. A word to the wise, I suppose. You really need to do a title search to make sure …
The Pennsylvania Supreme Court has reaffirmed and applied the doctrine of estoppel by deed in the case of Shedden v. Anadarko E. & P. Co., L.P, 136 A.3d 485 (Pa. 2016) and distinguished it from the doctrine of equitable estoppel. Equitable estoppel “recognizes that an informal promise implied by one’s words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment, may be enforced in equity” while “[i]n contrast, the doctrine of estoppel by deed precludes one who conveys an interest in land that he does not own, but subsequently acquires the title thereto, from denying the validity of the first conveyance.” In this case, an owner leased oil and gas rights to a 62-acre parcel while actually owning only 50% of them. When the owner later acquired the other 50% of the oil and gas rights, the doctrine of estoppel by deed folded those …
Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30. In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without …
The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable housing to be constructed. In Eisai, Inc. v. Housing Appeals Committee, 89 Mass. App. Ct. 604 (2016), the court affirmed the substantial deference owed to the state agency when it exercises its powers ordering a municipality to issue a comprehensive development permit for affordable housing. Local concerns that include protection of health or safety of occupants or residents of the municipality cannot override …
The Utah Supreme Court has affirmed and applied the doctrine of “boundary by acquiescence” under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by adjoining owners. The doctrine differs from adverse possession because it is based on mutual permission rather than adverse occupation (occupation that is non-permissive).
Many mortgage agreements allow the lender to change the locks on the door and take over the property when a borrower-mortgagor defaults or abandons the property; this is intended to prevent the property from becoming dilapidated or taken over by squatters. However, some banks have locked owners out of their homes after they default even if they are still living there and there is no evidence of abandonment or harm to the premises. The Washington Supreme Court outlawed this practice in Jordan v. Nationstar Mortg., LLC, 2016 WL 3748978 (Wash. 2016), interpreting a state statute that denies the “owner of the mortgage” the power to “recover possession of the real property, without a foreclosure and sale according to law,” Rev. Code Wash. §7.28.230(1). The court emphasized that Washington is a lien theory state that leaves title with the homeowner and gives the lender a lien on the property unlike title theory …
In Kitras v. Town of Aquinnah, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the grantor to reach a public road. In most states the doctrine is based both on the implied intent of the grantor and public policy considerations that support access to land both to protect the landlocked owner’s right to access his or her land and general welfare considerations of making the land alienable and usable. However, the emerging majority rule seems to be that the touchstone is the intent of the parties and if the parties actually intend to create a landlocked parcel, they will be allowed to do so, and their arrangement will …
Massachusetts courts hostile to easement by necessity doctrine Read More »
The Supreme Judicial Court of the Commonwealth of Massachusetts has held that “an easement… may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened.” Martin v. Simmons Properties, LLC, 2 N.E.3d 886 (Mass. 2014).
