Trespass

SJC Gives Country Club A Mulligan From $5 Million Jury Award In Errant Golf Ball Case

by Rich Vetstein on January 17, 2023

in Easements, Massachusetts Real Estate Law, Premises Liability, Real Estate Litigation, Safety, Trespass

High Court Rules That Trial Judge Improperly Instructed Jury On Golf Course Property Easement, Covenants and Restrictions

Credit: Boston Globe

In a case which has received national attention and a People Magazine article, the Supreme Judicial Court has overturned a jury’s award of $5 Million to a family whose home overlooking the 15th hole at the Indian Pond Country Club in Kingston was pelted by hundreds of errant golf balls. Erik and Athina Tenczar brought the lawsuit against the Indian Pond Country Club in Plymouth Superior Court, claiming that duffers shanked over 700 wayward golf balls off the 15th tee, peppering their home, breaking windows, and tormenting their family for years without an acceptable solution from the club. A jury agreed, awarding the couple an eye dropping $3.4 Million in emotional distress damages, plus another $1.6M in property damage with interest.

The massive jury verdict had many real estate attorneys and golf enthusiasts scratching their 9-irons, with online comments ranging from “what did they expect living next to a golf course” to “the club did not do enough.” In an eagerly awaited decision, a unanimous Supreme Judicial Court struck down the jury verdict. The justices ruled that the trial judge misinterpreted the covenants and restrictions governing the golf course home community, and that he incorrectly instructed the jury on those rules which gave the club an easement allowing for the “reasonable and efficient operation” of a golf course in a “customary and usual manner.”

Justice Scott L. Kafker, who wrote the opinion, acknowledged that golf is a game of misses and errors:

“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game. They demonstrate the difficulty and challenge of the sport even for the very best players,” Kafker wrote. “Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in [this] case — golf shots go awry, as a matter of course.”

It’s hard to say whether the jury, if properly instructed on the scope of the covenants, restrictions and easements, would have come to the same result. The Tenczar’s presented the jury with evidence that over 700 flying balls shattered windows in their house with such force they sent glass spraying into the next room; the siding on the house was peppered with circular dents. The couple say they anticipated putting up with some amount of sound and distraction from living along a golf course. But they were not prepared for the extent, frequency, and intensity of all of it . . . Honestly, if you have all these houses on a course, I assumed it was safe,” Athina Tenczar told the Boston Globe. The club made several modifications to the 15th hole to encourage golfers to hit shots away from the Tenczer home, but they did not install protective netting.

While owning a home on a golf course comes with the inherent risk that errant golf balls will come onto property, the Tenczars will get to tee up their case another time before a jury. That is, if they aren’t able to settle the case with the club. Perhaps that’s the best way to an “even par” result. The case is Tenczar v. Indian Pond Country Club, Inc., 491 Mass. 89 (Dec. 20, 2022), embedded below.

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SJC Declines To Uproot Law On Tree Responsibility

by Rich Vetstein on July 30, 2018

in Fences, Massachusetts Real Estate Law, Premises Liability, Trespass

Court Declines to Cut Down Massachusetts Rule: Neighbor Not Liable for Damage Caused By Healthy Tree

I hope everyone is having a fun and relaxing summer. While you were soaking up the rays down the Cape or enjoying a delicious lobster roll at Woodman’s in Essex, the justices of the Supreme Judicial Court remained busy deciding cases.

A few weeks ago, in Shiel v. Rowell, the Court was asked to overrule centuries-old common law that a landowner may not be held liable for damage caused to a neighbor’s property from a healthy tree. In an opinion interspersed with amusing tree puns, the justices declined to uproot precedent, and reaffirmed the “Massachusetts Rule” that if a healthy tree causes damage to a neighbor’s land, there is no liability. However, the neighbor may prune or remove encroaching branches or roots.

100 Foot Sugar Oak Tree

In the case, Keli-Jo and John Rowell own residential property adjacent to Mary Shiel. On the Rowells’ property sits a 100 foot tall sugar oak tree with branches reaching over Shiel’s property. Shiel filed a complaint with claims of private nuisance and trespass against the Rowells after the tree caused algae buildup on the roof of Shiel’s home and the Rowells refused to cut it down. Shiel sought money damages for the damage to her roof and an injunction demanding that the overhanging branches be cut back. A judge in Quincy District Court dismissed Shiel’s lawsuit, citing the Massachusetts Rule above.

No Reason To Overrule Legal Precedent

The case went up on appeal, with Shiel urging the SJC to adopt the “Hawaii Rule” which allows a neighbor to require the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, harm to the neighbor’s property. Shiel reasoned that the Massachusetts rule is outdated because today people are living in closer proximity to one another on smaller tracts of land than they were back in the 1800’s. While the justices acknowledged the recent need for changing other aspects of premises liability (eliminating distinctions between licensees, visitors, trespassers, for example), they saw no drastic change in the Massachusetts landscape to overrule over a hundred years of legal precedent. The law on tree responsibility remains the same today as it was in 1890.

Same Law, Same Questions

Now, the question I get the most from homeowners is what happens if a neighbor’s tree branches or roots are encroaching onto my property and causing damage? The SJC reaffirmed in Shiel that property owners may still legally cut encroaching branches and roots. This is true whether the tree is healthy or diseased. The SJC also restated the rule that a neighbor is always responsible for damage caused by an unhealthy tree regardless of whether it encroaches or not.

Attorney’s Advice: If you are dealing with a dispute regarding trees, especially along the property line, it’s a good idea to consult an attorney. Always get a survey or plot plan performed before you cut any trees. There is a Massachusetts law which provides a “triple damage” penalty for the malicious cutting of trees.

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Evicting Unauthorized Occupant Requires Creative Approach

by Rich Vetstein on June 15, 2015

in Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Real Estate Litigation, Rental Housing, Trespass

Restricted-Access-Signs---Industrial-43894BBHPLYALU-baBy-Pass Housing Court For Expedited Superior Court Restraining Order Procedure

I recently handled an interesting case involving an unauthorized family member taking up residence in my client’s rental unit. My client, a doctor, owns a very nice condo unit in the Theatre District in Boston. He and his family live next door in the adjacent unit. The client signed a one year lease with a wealthy foreign national from Jordan, a middle aged lady. Per the lease, the tenant was the only authorized occupant for this 1BR unit. There was no discussion about family members being authorized occupants, and my client would not have agreed to it.

My client comes to find out that the tenant’s 20-something year old son, who attends a local college, has taken up residence in the unit. To make matters worse, the kid hosts several loud late night parties reeking of marijuana and cigarette smoke. My client is incensed, and to add insult to injury, he is fined several thousand dollars for noise and lease violations by the condo association. My client attempts to take action against tenant and son, but they hire a well known tenant’s rights attorney who stonewalls the two attorneys hired by the client. The client finally hires me.

Typically, this type of case would be filed as a standard eviction case in busy pro-tenant Boston Housing Court. The tenant’s attorney is also well known there. Accordingly, I needed to find a way to bypass Housing Court and take away this lawyer’s home court advantage.

So I came up with an creative approach. I filed a restraining order application in Superior Court to remove the son as an illegal trespasser. Although Superior Court typically handles major civil cases, it does share jurisdiction with the Housing Court over trespass cases requesting equitable relief. I served the interloper with a formal trespass notice, then filed the Superior Court application a few days later. The judge granted the move out order, after which my client and I had the pleasure of taking a victory walk down Tremont Street to serve the move out order. We were able to have the management company immediately change the locks and remove all the kid’s possessions. He is now permanently barred from entering the building. And the best part was that he left his wallet and passport in the unit! My client is now preparing the unit for rent to a better tenant. 

As the saying goes, “possession is 9/10ths of the law”!!!

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Check Before You Cut! Massachusetts Illegal Tree Cutting Carries Substantial Civil Penalties

by Rich Vetstein on January 27, 2013

in Adverse Possession, Boundaries, Environmental Law, Fences, Massachusetts Real Estate Law, Real Estate Litigation, Safety, Trespass

recy3Triple Damage Penalty for Willful Cutting Of Neighbor’s Trees 

Neighbors typically get really mad when you chop down their trees. Really mad….and it can get the guy with the chainsaw into a lot of legal trouble. Can you say “triple damages”?

First enacted in 1698, the Massachusetts illegal tree cutting law (General Laws chapter 242, section 7) provides for up to triple damages for the malicious cutting, trimming, or destroying of another’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

That said, I always advise property owners who intend to cut trees near boundary lines to consult a survey or plot plan to ensure that the trees are not on their neighbor’s land.

Measure of Damages: Restoration Cost Value

The measure of damages for those harmed by the willful cutting of trees varies from case to case. The most common measure of damages is either the value of the timber cut, restoration cost, or the resulting diminution in value of the property. A claimant is entitled to assert a claim for either value, whichever is highest.

Where the trees cut are tall, hard to replace or have a particular function like screening, or all the above, it is wise to engage a certified arborist to perform a comprehensive restoration cost analysis. The restoration cost analysis takes into account the aesthetics, functionality, age, height, girth, and species of the trees, and formulates a restoration value for the replacement of the removed trees. The method, known as cost-of-cure, involves determining the cost of planting trees and the estimated time for the replacement trees to grow to the size of the destroyed trees (years to parity).

In recent cases, Land Court judges have awarded $30,000 (tripled) for the cutting of 10 mature oak trees and nearly $45,000 (tripled) for the clearing of an 800 square foot woodland area which provided privacy screening. In both of these cases, expert arborist testimony was offered on the restoration cost of the cut trees. And who can forget the case where a Somerset family recovered a $150,000 wrongful death settlement after a women dropped dead after her neighbor wrongfully cut down a swath of sentimental trees.

Branches Over The Property Line

Under Massachusetts common law, you may remove branches of a neighbor’s tree extending over your property line as long as you don’t kill or damage the tree. Also, the neighbor has no liability for roots growing into your yard and causing damage. Massachusetts law does not allow a person to cross or enter a neighbor’s property for these purposes without the neighbor’s consent, nor to remove any branches or other vegetation within the confines of the neighbor’s property. This is the “Massachusetts Rule.”

Utility Tree Cutting

I’ve been reading about many recent disputes between property owners and utility companies (Wayland v. NStar) over tree cutting within utility easements. The law provides a public utility the right to remove or trim your tree if it interferes with the necessary and reasonable operation of the utility. Furthermore, the utility is required to perform tree trimming as part of its program to maintain reliable service for its customers. The National Electric Safety Code requires utilities to trim or remove trees growing near power lines that threaten to disrupt service. Proper and regular tree trimming helps prevent the danger and inconvenience of outages.

Lastly, landscapers and tree cutting companies should get a signed directive from the homeowners and an indemnification prior to cutting trees, as my fellow real estate attorney Chris McHallam points out.

If your trees have been wrongfully removed by a neighbor or if you have mistakenly removed trees, you should consult an experienced Massachusetts property law attorney. Valuation of trees is a science, rather complicated, and best left to the professionals.

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Richard D. VetsteinRichard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who has handled numerous illegal tree cutting and boundary line disputes. Please contact him at [email protected] or 508.620.5352.

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Footprints In The Sand: Massachusetts Beach Access Law

by Rich Vetstein on July 20, 2012

in Adverse Possession, Boundaries, Easements, Massachusetts Real Estate Law, Public Accommodation, Trespass

“My life is like a stroll on the beach…as near to the edge as I can go.”

— Henry Thoreau

No Massachusetts summer is complete without some good times spent on the beach, be it on Cape Cod, Ipswich, or Duxbury. But what happens when you are taking a nice stroll on the beach and hit one of those “No Trespassing — Private Beach” signs? Can you continue walking? Can you walk on the water’s edge or wet sand? What about swimming, fishing or boating? Most folks are unaware of Massachusetts’ archaic beach access laws, and I will try my best to explain them in this post.

Origins To Colonial Days:  General Rule, No Public Access To Private Beach Areas

Massachusetts has a unique set of laws giving coastal property owners more extensive private rights to beachfront area than other states. In most coastal states, there is unlimited public access to beachfront areas and you can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas have been established.

The origin of this law dates back to the Mayflower days. In order to facilitate coastal development, under the Colonial Ordinances of 1641-47, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the average or mean high water mark and the low water mark (up to 100 “rods,” or 1,650 feet, from the high water mark) to all private coastal landowners. The land—but not the water—between the two tide marks is known as “private tidelands.” This typically includes all of the wet sand area on beaches.

The general rule is that with some limited exceptions explained below, beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.

Limited Public Beach Access Between Low and High Tide Area for “Fishing, Fowling and Navigation”

The Colonial Ordinance reserved three specific and important rights of public use within the private tidelands for “fishing, fowling and navigation.” Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)

Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in “fishing, fowling, or navigation.”

These antiquated Massachusetts beach access laws have created many disputes between public beach-goers and wealthy coastal property owners who have attempted to enforce a “private beach” regime. Under the Colonial Ordinance, no private property owner may deny access to someone who is fishing or hunting for birds or even surfing or launching a kayak. Indeed, knowledgeable beach-goers are often seen walking with beach with fishing rods in hand or shellfish equipment, so as to claim access rights under the Colonial Ordinance.

What About Swimming?

Swimming rights are a bit confusing. According to the courts, swimming in the intertidal zone is included within the reserved public right of navigation, but only so long as your feet don’t touch the bottom! And you don’t have a right to walk along the wet sand area solely for the purpose of gaining access for swimming. So basically you have the right to swim into a private beach area provided you continue to swim and don’t stand or walk into the private tidelands zone. So try not to drown..

Can I Walk Below the Low Tide Line?

Yes, private property owners cannot interfere with the public’s right to walk along the submerged lands that lie seaward of the low tide line. With few exceptions, they don’t own that land; the public does. But this is tricky because the mean low tide area is seldom marked and changes historically.

I own beachfront property. I don’t mind the public walking along my wet sand area even if they are not “fishing, fowling, or navigating,” so long as by allowing this, I don’t lose any property rights in the process. Is there some way that I can be a ‘good citizen’ and still retain my property rights?”

Yes. What you appear to be worried about is the legal concept known as “prescription” or “adverse possession.” I have written a detailed post on adverse possession here. This is the idea that if someone uses your property for a sufficiently long time, they may be able to claim a property interest in it. For someone to be able to make this claim, however, their use has to be without your permission. Therefore, openly allowing the public to walk across your land (e.g., by “posting” such permission) is usually the best way of defeating someone’s ability to accrue such a right. Posting the land in this manner, of course, would not affect any access rights that anyone had already obtained before the posting.

Under existing state law, a property owner who allows the public to use his or her land for recreational purposes without charging for such use is shielded from liability for injuries sustained during that use so long as the property owner did not act with such “fault” that his or her conduct constituted “wilful, wanton or reckless conduct.”

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Well, that’s it on the rather complicated topic of Massachusetts beach access law. Enjoy your beach day and perhaps start carrying a fishing rod or line when you take a long walk!

More Helpful Resources:

Massachusetts Coastal Zone Management Fact Sheet

FAQs on Beach Access By Trisha Daly-Karlson

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous adverse possession and beach access cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts real estate dispute.

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Spite Fences Make For Bad Neighbors: Massachusetts Fence Law

by Rich Vetstein on June 12, 2012

in Fences, Massachusetts Real Estate Law, Real Estate Litigation, Safety, Trespass

The old Robert Frost poem Mending Wall goes “Good fences make good neighbors.” But a neighbor can quickly turn from good to bad when a they maliciously construct a “spite fence” on the property line. And that includes Sarah Palin who installed this 14 feet monstrous fence at her Wasilla, Alaska home.

What Is An Illegal Spite Fence?

Spite fences are those which neighbors put up extremely close to the other neighbor’s property for the purpose of annoying or inconveniencing the neighbor, and not for any legitimate other reason. In certain circumstances in Massachusetts, courts can rule that certain types of fences are illegal “spite fences,” and order that they be taken down, decreased in height or award damages to the complaining neighbor.

Under the Massachusetts Spite Fence Law (Gen. Laws ch. 49, § 21) ((Interestingly, Massachusetts was one of the first states to enact a spite fence law in 1887)) a fence is an illegal “spite fence” if:

A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property….

Whether a fence is an illegal spite fence depends on the circumstances. Usually spite fences are erected where neighbors have been fighting or in a legal dispute of some kind, and the fence is installed as a form of revenge or pay-back. In the vast majority of towns and cities, fences are allowed to be up to 6 feet tall. If the fence in question is over 6 feet tall, and there is evidence that it was installed maliciously, it may be an illegal spite fence.

In a recent dispute on Concord Street in Wilmington (see photo right), a neighbor has installed a very ugly make-shift plywood spite fence with a blue tarp attached. This precipitated a proposal to pass a new fence by-law in Wilmington. I’m not sure of the circumstances surrounding this particular fence, but it is certainly borders on a classic spite fence. In another reported case, the Land Court ordered a neighbor to take down a makeshift fence with spray painted signs and no trespass warnings.

Most folks who erect spite fences will claim the fence is for privacy, but if the home faces an entirely different direction, you can debunk that as a cover for maliciousness. Neighbors may also try to get around the Spite Fence Law by installing a row of trees over 6 feet tall behind the fence. These, too, may be considered illegal.

What Can I Do If My Neighbor Puts Up A Spite Fence?

Under the Spite Fence Law cited above, you can sue your neighbor and ask the court to take down the fence and also seek damages. Under this law and upon a showing of “irreparable harm” the court has the power to impose an injunction ordering that the fence be taken down or reduced to 6 feet tall. Alternatively, the court can award damages.

The difficulty with these cases is that you need to prove you neighbor acted “maliciously” in installing the fence. You will need to marshal evidence to prove that, and that’s where an experienced Massachusetts real estate litigation attorney would add tremendous value. These cases are complex and judges will often require evidentiary hearings before imposing an order taking down a fence. It’s not a “do it yourself” type of situation!

If you are struggling with a boundary line issue or a potential “spite fence,” don’t hesitate to contact me at [email protected]. I have successfully litigated quite a lot of these cases.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigation attorney. Mr. Vetstein frequently represents Massachusetts residents in contentious boundary line, fence, and adverse possession cases.

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2011 Massachusetts Real Estate Law Year In Review

by Rich Vetstein on December 30, 2011

in Foreclosure, Homestead, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Real Estate Litigation, Title Defects, Trespass

It’s time again for our annual review of highlights in Massachusetts Real Estate Law for the past year. It’s been a very busy year. From the foreclosure fallout, to Occupy Boston, to the new homestead law, there’s been lots to report on. We’ll start in order of importance this year.

SJC Decides Controversial U.S. Bank v. Ibanez Case

2011 started off with a bang with the Supreme Judicial Court’s decision in the widely publicized foreclosure case of U.S. Bank v. Ibanez. Our coverage of the case can be read here and here. The Court’s ruling was rather elementary: you need to own the mortgage before you can foreclose. But it’s become much more complicated with the proliferation of securitized mortgages bought and sold numerous times on Wall Street. The Court held that the common industry practice of assigning a mortgage “in blank” — meaning without specifying to whom the mortgage would be assigned until after the fact — does not constitute a proper assignment, at least in Massachusetts. The ruling left many innocent homeowners and title insurance companies scrambling to deal with titles rendered defective due to the ruling. The fallout continues to this day with no resolution by lawmakers.

AG Coakley Sues Major Banks For Foreclosure Fraud

2011 was certainly the Year of Foreclosure Fallout. Earlier in December, Attorney General Martha Coakley filed a huge consumer protection lawsuit over wrongful foreclosures against the top 5 U.S. lenders, Bank of America Corp., J.P. Morgan Chase & Co., Wells Fargo & Co., Citigroup Inc. and Ally Financial. Coakley also names Mortgage Electronic Registration System, or MERS, the electronic mortgage registration system which proliferated during the securitization boom of the last decade. The lawsuit said it sought “to hold multiple banks accountable for their rampant violations of Massachusetts law and associated unfair and deceptive conduct amidst the foreclosure crisis that has gripped Massachusetts and the nation since 2007.” The case remains pending.

Massachusetts Real Estate Attorneys Win Legal Victory Ensuring Their Place At Closing Table

In the closely watched case of Real Estate Bar Association (REBA) v. National Estate Information Services (NREIS), Massachusetts real estate attorneys won a huge legal victory reaffirming their long-standing role to oversee the closing process and conduct closings in Massachusetts. The case pitted Mass. attorneys vs. out of state notary companies who were trying to conduct notary real estate closings without trained attorneys. Siding with the consumer, the court required “not only the presence but the substantive participation of an attorney on behalf of the mortgage lender.”

New Homestead Law

This year saw the passing of the long-awaited comprehensive revision to our outdated Homestead Act. Here is a summary:

  • All Massachusetts homeowners receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence without having to do anything.
  • All Mass. residents are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds. For married couples, both spouses will now have to sign the form–which is a change from prior practice.
  • Homesteads are now available on 2-4 family homes, and for homes in trust.
  • The existing “elderly and disabled” homestead will remain available at $500,000.
  • If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse. Homesteads now pass on to the surviving spouse and children who live in the home.
  • You do not have to re-file a homestead after a refinance.

More Foreclosure Fallout With Bevilacqua and Eaton Cases

The U.S. Bank v. Ibanez case was the start, but certainly not the ending of the foreclosure fallout. The case of Bevilacqua v. Rodriguez considered property owners’ rights when they are saddled with defective titles stemming from improper foreclosures. The ruling with a mix of good and bad news. The bad news was that victims of defective foreclosure titles could not seek redress through the Land Court “quiet title” procedure. The good news was that the court left open whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles.

Eaton v. Fannie Mae is the next foreclosure case awaiting final decision. As outlined in my prior post on the case, the Court is considering the very important question of whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. Using the “produce the note” defense which has been gaining steam across across the country, the borrower, Ms. Eaton, was able to obtain an injunction from the Superior Court halting her eviction by a foreclosing lender. The SJC heard arguments in the fall and is expected to issue a final ruling early in 2012. A ruling against lenders would be as big, or even bigger, than the Ibanez case.

Lastly, another case to watch for in 2012 is HSBC Bank v. Jodi Matt which will decide whether a lender holding a securitized mortgage has standing to even begin a foreclosure action in the Land Court under the Servicemembers Civil Relief Act–one of the first steps in the Massachusetts foreclosure process. The case is should be ready for oral argument in late winter, early spring 2012.

Judge Evicts Occupy Boston Protesters

What would 2011 be without a homage to the Occupy Movement! Citing property and trespass law from centuries ago, Massachusetts Superior Court Justice Frances A. McIntyre issuing a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Our coverage of the ruling is here.

Well, that’s it for a very busy year 2011 in Massachusetts real estate law! The year 2012 is expected to be just as busy, and of course, we’ll be on top of all the breaking news here on the Blog.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigator and attorney. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

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Massachusetts Real Estate Litigation: What You Can Expect Going To Court, Part 1

by Rich Vetstein on December 17, 2011

in Condominium Law, Liens, Massachusetts Real Estate Law, Permitting/Zoning, Real Estate Litigation, Trespass, Zoning

sjc-300x134.jpg

For most folks, litigation and courtrooms are as foreign as Belgium. When a new clients comes to me with a potential litigation matter, I spend most of our first consultation discussing the process of litigation and how it works. Then inevitably we have to talk about the cost and expense, which for most lawsuits is a lot more than people expect. In this post, I wanted to provide you with a summary of what happens when you decide to file a Massachusetts real estate litigation and lawsuit, or if you have to defend yourself against one.

First Steps: Filing Or Answering The Complaint & Selecting A Venue

The first step in every Massachusetts lawsuit is the filing of the Complaint, along with a filing fee ($285 in Superior Court). The Complaint sets forth the factual allegations of the lawsuit, along with the formal legal claims such as breach of contract, zoning appeal, adverse possession or fraud.

Most real estate litigation cases where the damages exceed $25,000 are filed in either the Superior Court or the Land Court. (For smaller matters under $25,000 you can file in the local District Court; small claims cases are for $7,500 or less).

The Land Court is a specialized court with expertise in real estate disputes. I’ve written about the Land Court here. The Superior Court is the “jack of all trades” trial court, and hears just about every type of civil and criminal dispute at the trial level. Depending on the facts of the case, there are strategic advantages to filing in either Superior or Land Court.

After the complaint is filed, a Summons is issued which must be formally served by constable or sheriff on the “defendants” in the case. The attorney will arrange for service of the summons and complaint to be made and a sheriff will show up at the defendant’s home or business with the legal papers. Defendants have 20 days to “answer” the complaint. The Answer is a formal response to the Complaint, and the defendants can also assert any “counterclaims” he or she may have against the plaintiff.

Pre-Judgment Remedies

Many real estate litigation cases involve asking the court for some type of relief or action during the initial stages of the lawsuit. This is called “pre-judgment relief.” In many real estate cases, a litigant will ask the court for a lis pendens on property, which is a formal notice of the claim recorded on title. In other cases, a litigant will ask for an injunction or restraining order stopping a landowner from building or taking other adverse action which would injure their property.

Asking a court for such pre-judgment relief requires filing motion papers, legal memoranda and often multiple court hearings where the lawyers will argue the issues before the judge. This will add another level of expense on the case, often quite a bit. I usually give clients a ballpark figure of $5,000 for taking a case through the pre-judgment relief stage–could be less, could be more, depending on the response from the other side.

Often cases can be won or lost at these early stages as a lis pendens can stifle a potential sale or an injunction can shut down a construction site, thereby forcing a favorable settlement. Thus, it is very important to have an experienced and savvy Massachusetts real estate litigation attorney work up the case properly and argue the case forcefully during a pre-judgment remedy proceeding. There are certain ways to increase your chances of success at this stage and even obtain relief without the other side even knowing you are going to court, called ex parte relief, if the situation warrants. (Ex parte in Latin means “from (by or for) one party.”)

Phase 2: Discovery

For cases on the normal track, once the answer is filed and all factual allegations and legal claims are raised in the case, it moves to the next stage: discovery. Discovery is the process where each side shares information about the case with each other. Litigation is not supposed to be a cat-and-mouse-hide-the-ball game.

This is a good time to discuss how long it takes to get to a trial in a Massachusetts lawsuit. With huge budget cuts in the courts, it is taking up to 2+ years for most civil cases to reach trial. Yes, you read that correctly. It can take even more time in some cases. I’ve had a case in Norfolk County (Dedham) ready for trial 3 different times, only to get bumped at the last minute, each time costing the client thousands of dollars in legal fees and months of delay. There is really nothing a litigant can do about these delays (save for settling the case out of court).

The discovery stage is the most labor intensive and expensive part of the case, with lawyers taking depositions of witnesses and filing and answering formal written questions, called interrogatories, and responding to requests for document production. There are often disputes and motions which have to be resolved in this stage. Depositions can easily cost $1,000 each, and discovery in a fairly involved case can run easily up to $10,000 + in legal fees.

For the next post, we will discuss Phase 3: Summary Judgment/Pre-Trial, Going To Trial, and Appeals (click here). Stay tuned!

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at [email protected].

 

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No Trespassing! Judge Evicts Occupy Boston Protesters From Taking Over Dewey Square

by Rich Vetstein on December 7, 2011

in Massachusetts Real Estate Law, Premises Liability, Safety, Trespass

Judge Rules That Occupy Movement Protesters Are Common Trespassers

Today, Massachusetts Superior Court Justice Frances A. McIntyre issued a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Judge McIntyre had originally granted the protesters a temporary restraining order sustaining the protests, but after reviewing evidence and hearing legal argument, she has changed her mind.

For interest to our real estate readers, the Judge balanced the City’s property rights vs. the protesters First Amendment speech rights. The judge ultimately concluded that the “occupation” as practiced by the Occupy Boston protesters — physically taking over the public park from the City and to the exclusion of others — was a classic trespass and not a First Amendment right.

“To the extent that the act of occupation, as defined, communicates, it speaks of boldness, outrage, and a willingness to take personal risk. But the plaintiffs’ occupation of Dewey Square to the effective exclusion of others is the very antithesis of their message that a more just and egalitarian society is possible. It does not send the message the plaintiffs profess to intend.” — Judge Francis McIntyre

Analysis: Sound Decision But Quite Expansive

This is a solid, well-reasoned judicial opinion that may be difficult to overcome on appeal. However, the judge’s reasoning on “occupation” is new and perhaps ground-breaking, so it could be susceptible to a different opinion on appeal. This case will surely make its way up to the Supreme Judicial Court, and we’ll blog about it here of course.

As the judge found, the First Amendment is not absolute. Yes, the protesters have a right to assembly, but that right must be peaceful and not permanent as to constitute a seizure of public land or present a grave public safety risk. The First Amendment, by its own language, protects speech, not physical occupation of public land. That’s called eminent domain.

Furthermore, the possibility of real public safety tragedy is virtually guaranteed at some point the longer this encampment is allowed to fester with its flammable tarps, fire sources, auto batteries, extension cords and no sanitary facilities on site. Most of the protesters were not born for the terrible Cocoanut Grove Fire in 1942. A fire would quickly swallow up the tent camp and kill dozens. Health, sanitary and fire codes were not intended to abridge the protester’s speech rights.

The judge went much further than she had to though, and this is where her reasoning could be challenged on appeal:

 “Little in the way of expression is outlawed under the United States Constitution, but an act which incites a lawful forceful response is unlikely to pass as expressive speech.”

One need only turn to the Civil Rights Marches in Alabama in 1963 to see the flaw with this argument. The protesters in Alabama, simply by marching, incited a forceful response by the Alabama police and their water guns. Using Judge McIntyre’s reasoning, therefore, the Civil Rights Marches are not protected by the First Amendment simply because they elicited a police response. This is illogical as many expressive marches in turbulent times have resulted in police reaction. It doesn’t make the marches or speech any less entitled to constitutional protection.

I’ve posted the ruling below. What are your thoughts on the legal issues?

Occupy Boston Decision

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When Good Fences Make Upset Neighbors: Adverse Possession Law In Massachusetts

by Rich Vetstein on June 2, 2010

in Adverse Possession, Boundaries, Deeds, Fences, Massachusetts Property Values, Massachusetts Real Estate Law, Title Defects, Trespass

Click here to read about my most recent adverse possession trial victory.

Massachusetts Adverse Possession Law

Robert Frost ‘s famous poem The Mending Wall says “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, however, that good neighbor can turn nasty very quickly.

When boundary or encroachments disputes arise, a little known legal doctrine often comes into play:  adverse possession. Adverse possession is a common law concept in Massachusetts under which homeowners may lose title to their land by sleeping on their property rights for 20 consecutive years against a neighbor who has taken actions contrary to their property interests. Yes, a neighbor can effectively take over ownership of your land if you sleep on your rights. Massachusetts adverse possession law reflects a public policy aimed at inducing landowners to actively protect their land.

The classic example of adverse possession is a neighbor who puts up a fence or paves a driveway several feet over their neighbor’s property line, without permission, and this “adverse possession” continues without objection for 20 consecutive years.  Despite the fact that the neighbor’s fence or driveway encroaches the property line, under the adverse possession doctrine, the property owner may lose title to the disputed strip of land by not doing, saying or even knowing anything about it.

Requirements For Adverse Possession

A landowner can obtain adverse possession only by filing a lawsuit and establishing several elements of the claim.  (My property law professor used a handy acronym called OCEAN to help students remember them). The use of another’s land must be Open, Continuous (for 20 years), Exclusive, Adverse and Notorious. Each element has its own specific requirements, and all adverse possession cases are very fact-specific. The law does not favor adverse possession, so the burden of proof on the claimant is relatively high.

Adverse possession can also occur through multiple prior owners during the 20 year period under a theory called “tacking.” Adverse possession can also be in the form of an easement, or merely a right to use property, called a “prescriptive easement.” This could apply to the gamut of utility, pathway, or access easements.

Surveys and Stakes

Surveys typically form the genesis, and play an important role in, adverse possession cases. The parties must know where the true lot lines are on the property. Sometimes, there are disputes as to the survey in cases of old, poorly laid out lots. Remember that even if you believe the neighbor is wrong about the lot line, it is against the law in Massachusetts to remove survey stakes. (Mass. General Laws Chapter 266, Section 94).   Also under Massachusetts law, a surveyor is allowed to enter upon your land, with reasonable notice, for purposes of completing a survey.

Tips To Prevent Adverse Possession

The key to preventing adverse possession is to be proactive regarding your boundary lines and property rights. If you suspect an encroachment, obtain a full instrument survey, not a mortgage plot plan which can be inaccurate. If an encroachment is found, consult an attorney for further advice.

Generally, the most effective methods to prevent adverse possession are to:

  • Posting “No trespassing” signs (can be helpful, but is not fail-safe)
  • Physically demarcate lot lines with a fence, gate or the like (survey stakes alone may not be enough)
  • Document giving permission to an encroaching neighbor by written document or agreement
  • For prescriptive easements, record a statutory Notice to Prevent Acquisition of Easement. Note: this notice will not prevent a claim of adverse possession to the entire land.
  • Bring a lawsuit to “quiet title”
  • Submit your land to the Land Court registration system

The more land you own (especially raw woodlands) the more proactive you need to be.

Lastly, when buying new property, consider getting an enhanced title insurance policy which has coverage for encroachments and boundary issues, at a small premium over standard rates.

Adverse Possession Lawsuits

Given the high cost and low supply of land in Massachusetts, adverse possession disputes often wind up in litigation. Adverse possession litigation can be expensive because these cases are very fact-specific and require a fair amount of witnesses, factual investigation, title research, and even expert testimony. Adverse possession cases are generally difficult to win, but they can be successful with the right facts and good preparation.

The Massachusetts Land Court hears adverse possession cases along with the Superior Court. Depending on the facts of the case, the plaintiff can do a bit of “forum shopping” between the two courts.

Click here to read about my most recent adverse possession trial victory.
Click Play to listen to my radio broadcast on adverse possession
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Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession attorney who’s handled numerous adverse possession cases and trials in Land Court and Superior Court. Please contact me at [email protected] or 508-620-5352 if you are dealing with a Massachusetts adverse possession dispute.

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