Real Estate

  • October 23, 2017

The Limits of Exclusive Use Rights in Condominium Common Areas

Condominiums
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It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units.  This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar spaces that are affiliated with, but outside of, a unit.  But how exclusive is an exclusive use area?  The Massachusetts Appeals Court answered this question in a recent decision.

Calvao v. Raspallo (pdf) involved a two-unit residential condominium in Dennis, “down the Cape.”  The defendant Raspallo made some renovations to her unit, including an addition that encroached by 111 square feet into the exclusive use common area next to her unit.  She obtained permits for this work after the developer appointed her sole trustee of the condominium.  The owners of the other unit, the Calvaos, sued in Superior Court, where a judge ruled that Raspallo’s appointment as sole trustee was invalid and ordered the addition removed.  Raspallo appealed.

The Appeals Court first

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  • September 22, 2017

Perpetual Easement or Expired Restriction? Mass. Appeals Court Weighs In

Easements, Restrictions
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In its decision this week in Perry v. Aiello, the Massachusetts Appeals Court addresses an interesting question: whether a 1947 grant of easement-like rights created an affirmative easement, which can be perpetual, or a disfavored restriction whose duration is limited by sections 26-30 of M.G.L. c. 184.

The case involved a dispute between two storied Boston institutions:  DeLuca’s Market, a high-end grocery store that’s been in the same spot at the foot of Beacon Hill for over 100 years, and King’s Chapel, which dates back a bit further – as in 1686.  DeLuca’s, King’s Chapel, and another abutter share the use of a ten-foot-wide passageway between their buildings (the King’s Chapel building is a nice old brownstone, not the historic chapel itself, which is across town).  Fee ownership of the passageway is divided in half, with the abutters on each side owning to the center line.

In 1947, the parties’ predecessors entered into an agreement

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  • May 23, 2017

Breaking: Mass. SJC Overhauls SLAPP Statute Practice

SLAPP Suits
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The Supreme Judicial Court (SJC) today issued two decisions which together make important changes in how Massachusetts courts apply the often troublesome SLAPP statute, M.G.L. c. 231, § 59H, enacted in 1994. While of general application, the SLAPP statute often surfaces in disputes over real estate development.

Today’s decisions are dense and will require further study, but at first glance Blanchard v. Steward Carney Hospital, Inc. (pdf) is the more dramatic of the two. Massachusetts courts have long recognized that, as drafted, the reach of the SLAPP statute is not limited to classic SLAPP suits – weak or baseless cases brought primarily for the purpose of chilling a defendant’s legitimate “petitioning activity” – but extends to virtually any claim asserted in response to petitioning activity. After over 20 years of decisions construing the statute, Blanchard directly addresses this scope issue. As the SJC puts it, “[u]nder current case law, the inquiry ends without permitting confirmation that the fundamental

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  • May 08, 2017

In Self-Renewing Lease, Tenant Has Burden of Proving Timely Termination

Commercial Leases
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In a case of interest to commercial landlords and tenants, the Massachusetts Appeals Court recently ruled that where a commercial lease is self-renewing but can be terminated on six-months’ notice to the other side, the party seeking to terminate – in this case the tenant – has the burden of proving it timely exercised its right.

Patriot Power, LLC v. New Rounder, LLC is a classic “she said-she said” dispute.  The parties’ lease provided that it would automatically renew for successive terms of one year unless either party served on the other written notice of its intent not to renew at least six months before the expiration of the then-current term.  About two weeks before the six-month deadline, the tenant sent the landlord a Federal Express envelope containing documents the landlord had requested in connection with its refinancing of the property.  At trial, the tenant’s executive assistant testified that she had “no doubt at all” that, in addition to the refinancing documents,

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SJC Keeps Bright-Line Test for Overloading of Easements

Easements

In its recent decision in Taylor v. Martha’s Vineyard Land Bank Commission (pdf), the Supreme Judicial Court (SJC) put the brakes on a trend toward eliminating bright lines in the enforcement of easement rights.

The Facts

The case involved a nature preserve on Martha’s Vineyard encompassing the famed Gay Head cliffs (pictured).  The Martha’s Vineyard Land Bank Commission (Land Bank), which owns and manages the preserve, has an easement over the grounds of a nearby inn owned by Taylor Realty Trust (Trust), connected to the equally famed singing Taylor family.  In 2010 the Land Bank created a looped hiking trail that runs across the Trust’s property onto three Land Bank-owned lots that are benefited by the easement and then continues onto a fourth Land Bank-owned lot that is not benefited.

The Land Court Case

The Trust, invoking the black-letter rule that an easement can’t be used to benefit land

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