Delaware has passed a statute creating procedures to excise discriminatory or otherwise unlawful covenants in recorded deeds. The stricken portions in the chain of title are deleted and can only be revealed by the recording office in response to a subpoena. Del. Code tit. 9, §§9605, 9628 (81 Del. Laws 409).
The Bankruptcy Code allows forced sale of property owned by a married couple as tenants by the entirety against the will of the non-debtor spouse. In re Green, 2018 WL 4944988 (Bankr. E.D. Mass. 2018) (interpreting 11 U.S.C. §363(h)).
Affirming a longstanding rule of law, the Massachusetts Land Court ruled that a forged deed has no effect. McNeff v. Cerretani, 2018 WL 4370147 (Mass. Land Ct. 2018).
The Massachusetts Land Court has held that an owner can acquire the right to collect and discharge surface water onto neighboring land by prescription if this continues without permission by the servient estate owner and the other requirements for prescriptive easements are met. JPM Dev., LLC v. Nemetz, 2018 WL 4892726 (Mass. Land Ct. 2018). However, in a companion case, it emphasized that the amount of discharge is set by the historic use throughout the prescription period and any increase in that use is a trepass. Putney v. O’Brien, 2018 WL 6183338 (Mass. Land Ct. 2018).
Massachusetts courts have several times ruled that access easements may be recognized even though language creating an express easement may be missing or ambiguous in the deeds to the servient estate. Hickey v. Pathways Ass’n, 37 N.E.3d 1003 (Mass. 2015) (access easement recognized over registered land even though it is not in the certificate of title to servient estates when mention of it appears in titles to the dominant estates and maps indicating the easement were recorded at the registry and available to the servient estate owners before purchase); Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006) (right to use lots as parks found from recorded map). See also Loiselle v. Hickey, 107 N.E.3d 1205 (Mass. App. Ct. 2018); Leahy v. Graveline, 971 N.E.2d 307 (Mass App. Ct. 2012) (both interpreting ambiguous recorded maps and deeds to determine if neighboring owners have access easements).
In a case that rests on neighborhood norms and prescriptive easement doctrine, the Massachusetts Land Court has held that while an easement owner can maintain an easement, the easement owner here could not pave the road even though the unpaved road had holes that made it difficult to drive and had damaged the easement owner’s car. Unpaved roads were common to the area and desired by the owner of the servient estate and the easement had been obtained by prescription over the unpaved road. In effect, the court held that paving the road would exceed the uses the prescriptive easement owner had been making of the property. Ferris v. Bernstein, 2018 WL 6332991 (Mass. Land Ct. 2018).
A bankruptcy court in Massachusetts has ruled that state tenancy by the entirety law is preempted by the Bankruptcy Code, §363(h)–(j), interpreting federal law to authorize the forced sale of tenancy by the entirety property over the objections of the non-debtor spouse to satisfy the debts of the debtor spouse. Desmond v. Green, 2018 Bankr. LEXIS 3136 (Bankr. D. Mass. 2018).
The Massachusetts Commission Against Discrimination (MCAD) has found a violation of the state’s public accommodatoin law on the basis of race, national origin, and ethnicity when a manager of a Subway store stated to an Arab-American family: ““I’m the manager of Subway. You are banned from our store. We don’t need people like you. Why don’t you go back to your f**king country and learn how to speak English. We don’t serve foreigners like you. God Bless.” MCAD v. 2 Belsub Corp., 15-BPA-101141.
The Massachusetts Land Court has ruled that a town may amend its zoning ordinance to prohibit Airbnb use and that retroactive application of the new law to those who established Airbnb use before it was passed is lawful. The owner had no right to have the prior Airbnb use “grandfathered in” as a prior nonconforming use under state statutes. Styller v. Aylward, 2018 Mass. LCR LEXIS 194 (Mass. Land Ct. 2018).
Applying the rule in M.P.M. Builders, LLLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004) and the Restatement (Third) of Property (Servitudes) §4.8(3) (2000), a court has held that a servient estate owner may not relocatee an easement without the consent of the easement owner when it would diminish the utility of the easement. Randon v. Kiley-Ladd, 2018 Mass. LCR LEXIS 152, 2018 WL 3567179 (Mass. Land Ct. 2018). The court found as a factual matter that the proposed relocation would diminish the utility of the easement and, because the owner of the easement objected, the relocation would not be allowed.
