City has no sovereign immunity from suit by its tenants when it leases land in a “proprietary capacity”

/ Leaseholds, Real Estate Transactions, Title Issues

Although cities enjoy sovereign immunity from suit when they act in a sovereign capacity, they can be sued by tenants of land they have leased when they act in a “proprietary” capacity. Wasson Interests, Ltd. V. City of Jacksonville, 2018 Tex. LEXIS 999 (Tex. 2018). Cities act in a governmental capacity (and are immune from suit) when they perform traditional government functions for the benefit of the public or when they act at the direction of the state. Here the court found that the leases were made  in a proprietary fashion (a) when they engage in acts solely for the benefit of those in the cities; and (b) when it had no obligation to lease the lots to private parties; and (c) it was not acting as a branch of the state when it leased the property.

Nuisance victim awarded cost of restoration damages without any need to prove diminution in value of the property

/ Nuisance

When an oil tanker overturned in a traffic circle, spilled 9,000 gallons of oil and kerosene into a culvert, property owners who were affected were allowed to sue for the cost of restoring their properties because of the physical harm to them without any need to show that the contamination diminished the market value of their land. West v. Jewett & Noonan Transp., Inc., 189 A.3d 277 (Me. 2018). The Maine Supreme Judicial Court held that a nuisance claim must prove diminution in value of the land when the nuisance only involves physical discomfort or mental annoyance. When the nuisance physically affects the land, restoration damages can be awarded without proof of diminution in the fair market value of the land.

City takes property when it constructs a public park and invites the public to cross private property to access the park

/ Takings

A city created a public park next to private property and then used physical signs, maps on Web sites, and other methods to suggest to the public that they were free to cross that private property to get to the beach. Those acts were sufficient to constitute a taking of property without just compensation. The city effectively took a public easement from the private owner. Chmielewski v. City of St. Pete Beach, 890 F.3d 942 (11thCir. 2018).

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. 

Town acquires prescriptive easement allowing public to use a road and abutting parcel

/ Adverse Possession, Easements, Takings

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town’s highway superintendent maintained the area, plowed, sanded, oiled, and graveled the roadway, patched potholes, removed trees and fallen limbs from the area and cleared sediments from the triangle parcel.

Tenant can be evicted for allowing adult son to live with her

/ Leaseholds

A court has held that a tenant can be evicted for allowing her adult son to live with her when his name was not on the lease along with hers, making him an unlawful occupant. Atlantic Tambone Mgmt. v. Mejia, 2017 WL 4181374 (Mass. Dist. Ct. App. Div. 2017). The reason for the eviction also rested on the fact that the son had stolen a television that had been delivered to the building for another tenant, thus violating a lease provision that prohibited interfering with the quiet enjoyment of neighboring tenants.

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).

Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

/ Adverse Possession, Easements, Servitudes

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement “practically impossible” can it start the statute of limitations running for a prescriptive easement that will extinguish the easements after the statutory period. The court required greater evidence that the easement owner was actually excluded and that the land owner was actually exercising exclusive control over the path.

No claim against neighbor for damage caused by overhanging healthy tree

/ Nuisance, Trespass

The Massachusetts Supreme Judicial Court has reaffirmed the “Massachusetts rule” that owners cannot sue their neighbors for any damage caused by an overhanging healthy tree. Shiel v. Rowell, 101 N.E.3d 290 (Mass. 2018). The remedy is for the owner to trim the branches that encroach on his property before they cause damage. In upholding the established rule, the court rejected the “Hawaii rule” which imposes liability on the owner of the tree if it causes harm to neighboring property. See Whitesell v. Houlton, 632 P.2d 1077 (Haw. 1981). Note that the Massachusetts rule does impose an obligation on owners to remove unhealthy trees and imposes liability for any harms to neighbors caused by such trees.

Condo owner may be liable for wrongful death of neighbor when he rented his unit to his brother knowing he was a dangerous sex offender

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Nuisance

A court has held that a landlord may be liable for wrongful death of a neighboring condo owner if he rents his unit to his brother, knowing he is a sex offender who often stops using needed medication and is capable of violent outburst when he did not use his medication, fails to warn the neighbors of his presence, and the landlord’s brother kills a neighboring owner.  Steele v. Kings Way Condominium Trust, 2018 Mass. Super. LEXIS 103 (Mass. Super. Ct. 2018).

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