Title Issues

Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

/ Adverse Possession, Title Issues

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to establish the requisite acts of possession up to that line. 

Possibility of reverter or right of entry cut off after 30 years

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation, Title Issues

Massachusetts law sets a thirty year limit to possibilities of reverter following a fee simple determinable or rights of entry following a free simple subject to condition subsequent. Mass. Gen. Laws ch. 184A, §7. This contrasts with the 90 year limit for executory interests. Mass. Gen. Laws ch. 190B, § 2-901. The 30 year limitation was recently applied in Town of Winchendon v. Brandywine Farms, Inc.,2018 Mass. LCR LEXIS 91, 2018 WL 2297177, 26 Land Ct. Reporter 253 (Mass. Land Ct. 2018).

Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

/ Adverse Possession, Title Issues

Georgia is one of the few states that requires “good faith” in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting good faith when they signed a deed that defined the disputed parcel as belonging to a neighbor. The court held that the occupying parties was doing so in good faith despite the deed they did not know where the actual border was and did not actually know that they were occupying property belonging to another.

Option to purchase property valid if exercised within the USRAP 30 year period

/ Real Estate Transactions, Servitudes, Title Issues

The Massachusetts Land Court has held that a commercial option to purchase property may be exercised nine years after the right to exercise the option ripened (because of failure to fulfill a condition by a set date). Pinewood Road, Inc. v. Kuntz, 2017 WL 361172 (Mass. Land Ct. 2017). The court noted the traditional rule that an option to purchase real property “that does not supply a time limit for it exercise must be acted on within a reasonable period of time.” This modern rule softens the strict rule against perpetuities which traditionally invalidated options that had no time limit as executive interests that could vest too far into the future. Massachusetts adopted the Uniform Statutory Rule Against Perpetuities which requires an option to be exercised within 30 years, but since this option was created after the effective date of the statute, the option was valid and could be exercised.

First Circuit resolves dispute over religious real and personal property by reference to formal agreements

/ Personal Property, Religious Freedom, Title Issues, Trusts

The First Circuit Court of Appeals has resolved a longstanding and complicated dispute between two congregations over control of the real and personal property of the Touro Synagogue in Newport, Rhode Island. In an opinion by Judge John J. McConnell, Jr., the trial court had found that an implied or constructive trust existed by which a New York Congregation Shearith Israel (CSI) held title to the property for the benefit of the Newport Rhode Island Congregation Jeshuat Israel (CJI). Congregation Jeshuat Israel v. Congregation Shearith Israel, 186 F.Supp.3d 158 (D.R.I. 2016), rev’d, 2017 WL 3276805 (1st Cir. 2017). That opinion enforced Rhode Island property law and reviewed objective evidence of the parties’ relationship to find that the New York congregation held the property for the benefit of the Newport congregation. In an opinion by Justice Souter, the First Circuit reversed on the ground that the First Amendment requires courts to refrain from involvement in …

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Part performance as exception to the statute of frauds

/ Leaseholds, Real Estate Transactions, Statute of Frauds, Title Issues

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option to purchase. Because the “buyer” had already entered into possession of the property and needed only to make the required payments, the agreement was enforceable despite the fact that the land description was not sufficiently precise to satisfy the statute of frauds.

Fee simple absolute found despite language of “in trust” and “for the uses, purposes” of the YWCA

/ Estates and Future Interests, Real Estate Transactions, Statute of Frauds, Title Issues, Wills and Inheritance

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given “in trust, nevertheless, for the uses, purposes and trusts aforesaid.” Young Women’s Christian Ass’n, Inc. of Boston, Inc. v. Young Women’s Christian Ass’n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016). Traditionally any language in a conveyance of a fee simple that explains the “purpose” of the transfer or the “use” to which it is to be put, is interpreted as precatory language that has no legal effect on the title that is conveyed. The interpretive principle of the “presumption against forfeitures” suggests that any retained future interest or right of control in the grantor must be created explicitly and unambiguously. Some courts interpret this language to create an implied trust, or a fee simple …

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An owner can obtain property by acquiescence even if the neighboring land is unoccupied

/ Adverse Possession, Title Issues, Trespass

The Utah Supreme Court has held that an owner can obtain property “by acquiescence” if the owner occupies a strip of the neighbor’s land in a visible manner without objection.  Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although “acquiescence” suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it, the Court found that the same doctrine should apply even if the neighboring land was not occupied. Holding otherwise would reduce the security that comes from not having the neighbor object to placement of a fence. The doctrine in Utah requires a claimant to satisfy four elements:  (i) occupation up to a visible line marked by monuments, fences, or buildings; (ii) mutual acquiescence in the line as a boundary; (iii) for a period of at least 20 years; (iv) by adjoining landowners. The doctrine is distinguished from adverse …

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