AM Properties, LLC v. J&W Summit Ave, LLC (Lawyers Weekly No. 11-024-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1343 Appeals Court AM PROPERTIES, LLC vs. J&W SUMMIT AVE, LLC. No. 15-P-1343. Suffolk. May 17, 2016. – March 8, 2017. Present: Cypher, Blake, & Henry, JJ. Adverse Possession and Prescription. Real Property, Adverse possession. Civil action commenced in the Land Court Department on September 27, 2013. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Joseph L. Bierwirth, Jr. (Ryan P. McManus also present) for the defendant. Ann M. Sobolewski for the plaintiff. HENRY, J. The plaintiff, AM Properties, LLC (AM), brought an action in the Land Court seeking to (1) establish title by adverse possession to a strip of land (the strip) that is part of the property of the defendant, J&W Summit Ave, LLC (J&W), and (2) permanently enjoin J&W from interfering with rights in an easement for passage over J&W’s property (the passageway). J&W counterclaimed, denying AM’s claim of title to the strip and asserting its own adverse possession claim to extinguish AM’s rights to the passageway. The central issue in the case is whether AM is entitled to include, or “tack” on, an approximate six-year period of nonpermissive use of the strip by a tenant of a prior owner to satisfy the twenty-year requirement for a claim of adverse possession. On cross motions for summary judgment, a Land Court judge answered this question in the affirmative and ruled in AM’s favor on all claims. J&W has now appealed from that judgment. As is well established, a review of a summary judgment ruling is de novo, taking the facts, along with the reasonable inferences that can be drawn therefrom, in a light most favorable to the party against whom judgment is to enter. See Miller v. Cotter, 448 Mass. 671, 676 (2007); Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 n.4 (2010). To that end, we conclude that there is no genuine dispute of material fact[1] and that AM is entitled as a matter of law to tack on the prior period of tenancy to establish adverse possession. Accordingly, we affirm. Background. The following undisputed material facts are evident from the record. A specialty food store named Bazaar International Gourmet (Bazaar) has operated on the AM property at 1432 and 1432A Beacon […]
A.J. Properties, LLC v. Stanley Black and Decker, Inc. (Lawyers Weekly No. 10-154-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11424 A.J. PROPERTIES, LLC vs. STANLEY BLACK AND DECKER, INC. Suffolk. May 5, 2014. – September 5, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Assignment. Debt. Mortgage, Assignment. Contract, Assignment, Surety. Surety. Bond, Private building project, Construction and contract bond. Environment, Environmental cleanup costs. Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts on April 8, 2013. Gerard A. Butler, Jr. (Andrew D. Black with him) for the defendant. John A. Mavricos for the plaintiff. DUFFLY, J. At issue in this case is the right to payment under a performance bond issued to secure the obligation of an environmental consulting company to perform environmental remediation of a contaminated site that included land that had been owned by Stanley Black and Decker, Inc. (Stanley). In 2011, A.J. Properties, LLC (A.J. Properties), commenced the underlying action in the Superior Court, contending that it had acquired the rights to payment under the bond, and that Stanley had wrongfully collected payment. A.J. Properties argued that Stanley had assigned the rights to payment when it assigned a mortgage on the property to the Wyman–Gordon Company (Wyman-Gordon), which later assigned the mortgage to A.J. Properties. After Stanley removed the case to the United States District Court for the District of Massachusetts, a judge of that court certified the following question to this court pursuant to S.J.C. rule 1:03, as appearing in 382 Mass. 700 (1981): “Does the rule of Quaranto v. Silverman, 345 Mass. 423, 426–[427] (1963) [(Quaranto)], that ‘the assignment of a debt carries with it every remedy or security that is incidental to the subject matter of the assignment and could have been used or made available to the assignor,’ extend to a situation where a mortgage and a surety agreement secured an obligation, and both the mortgagor and the surety breached that obligation prior to a written assignment of the mortgage, does the assignee, by operation of law, acquire the right against the surety’s receiver for the surety’s breach of its obligation?” We answer that whether the right against the surety’s receiver is deemed assigned by operation of the rule of Quaranto, supra, depends on whether the right is an incident to […]
Wyman, et al. v. Ayer Properties, LLC (Lawyers Weekly No. 10-120-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11474 BRYAN WYMAN & others,[1] trustees,[2] vs. AYER PROPERTIES, LLC. Middlesex. March 4, 2014. – July 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Real Property, Condominium. Condominiums, Common area. Negligence, Construction work, Economic loss. Damages, Replacement or reconstruction of building, Repairs. Civil action commenced in the Superior Court Department on December 8, 2005. The case was heard by Paul A. Chernoff, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas O. Moriarty (David M. Rogers with him) for the plaintiffs. Thomas H. Hayman (Patrick T. Uiterwyk with him) for the defendant. Henry A. Goodman, for Community Associations Institute, amicus curiae, submitted a brief. CORDY, J. On December 8, 2005, Brian Wyman, Frank Thoms, and Vincent Cascio, as trustees of the Market Gallery Condominium Trust (trustees), filed a civil action against Ayer Properties, LLC (Ayer), seeking damages stemming from the negligent construction of elements of a condominium building by Ayer. The trustees alleged that Ayer — which had purchased and converted the building in question into condominiums — had negligently constructed the window frames, the exterior brick masonry, and the roof of the building, resulting in damage to both the common areas of the building and individual residential units.[3] After a jury-waived trial, a Superior Court judge found that Ayer was negligent in its construction of the window frames, masonry, and roof. He awarded damages for Ayer’s negligence as to the window frames and the roof, because their improper installation had resulted in damage to both the common areas and several individual units. However, because he found that the damage resulting from the defective masonry work was limited to the masonry itself and did not cause or include damage to any individual units, the judge concluded that the economic loss rule precluded the trustees from recovering for Ayer’s negligence as to that portion of the building.[4] In determining the appropriate measure of damages, the judge first calculated the cost to repair and replace the damaged portions of the building,[5] and then reduced that amount by twenty per cent to reflect what the costs would have been at the time of the negligent construction rather than at the time of the actual expenditures for repair […]
Martin v. Simmons Properties, LLC (Lawyers Weekly No. 10-012-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11325 CLIFFORD J. MARTIN vs. SIMMONS PROPERTIES, LLC. Suffolk. September 9, 2013. ‑ January 16, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ. Real Property, Registered land: easement, Easement, Certificate of title, Deed, Drain. Easement. Deed. Way, Private: extent. Drain. Civil action commenced in the Land Court Department on August 3, 2007. The case was heard by Gordon H. Piper, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Clifford J. Martin, pro se. Joseph P. Mingolla for the defendant. Martin J. Newhouse & John Pagliaro, for New England Legal Foundation & another, amici curiae, submitted a brief. Diane C. Tillotson, for Real Estate Bar for Massachusetts & another, amici curiae, submitted a brief. LENK, J. In this case involving registered land, we consider, among other things, the effect of a reduction by the owner of the servient estate in the dimensions of an easement created for the purpose of permitting the easement holder access to a lot which otherwise has no direct access from a public way. We must determine whether the dimensions of such an easement, defined by reference to a Land Court plan, may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened. We conclude that there is no meaningful distinction for purposes of such an analysis between an easement on recorded land and an easement on registered land held pursuant to a Land Court certificate of title. Confirming and expounding upon our adoption of the Restatement (Third) of Property (Servitudes) § 4.8(3) (2000) (Restatement) in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004) (M.P.M. Builders), we affirm the decision of the Land Court judge that the width of the easement properly may be reduced as the defendant has done here, since the plaintiff does not dispute that at all times he has been able to use the remaining unobstructed portion of the easement for the purpose of travel to and from his parcel. 1. Background and prior proceedings. We recite the facts based on the detailed findings of the trial judge. For the most part, the facts are undisputed. […]
City of Worcester v. College Hill Properties, LLC, et al. (Lawyers Weekly No. 10-083-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11166 CITY OF WORCESTER vs. COLLEGE HILL PROPERTIES, LLC, & another[1] (and four companion cases[2]). Worcester. January 7, 2013. ‑ May 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Lodging House. Contempt. Practice, Civil, Contempt. Words, “Lodgings.” Civil actions commenced in the Worcester Division of the Housing Court Department on January 13, 2010. The cases were heard by Timothy F. Sullivan, J., and complaints for contempt were also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Gary S. Brackett for the defendants. Ann S. Refolo, Assistant City Solicitor, for the plaintiff. Philip S. Lapatin & Nathaniel F. Hulme, for Greater Boston Real Estate Board, amicus curiae, submitted a brief. LENK, J. The defendants own two-family and three-family rental properties in Worcester. They leased dwelling units in these properties to groups of four unrelated adult college students. Each such dwelling unit contained a living room and dining room, kitchen, bathroom, and bedrooms. The inspectional services department of the city of Worcester (city) determined that, where such a dwelling unit is occupied by four or more unrelated adults, “not within the second degree of kindred” to each other, the dwelling unit is a “lodging” for purposes of G. L. c. 140, §§ 22-32 (lodging house act or act), and that each of the defendants was accordingly operating a lodging house without a license. See G. L. c. 140, § 24. This case presents the question whether such dwelling units as occupied constitute lodgings so as to render the subject properties lodging houses under the lodging house act. We conclude that the dwelling units are not lodgings and the properties are not lodging houses under the act. 1. Background. The essential facts are undisputed. The defendants own two‑family and three‑family rental properties in the city.[3] The properties contain dwelling units commonly referred to as apartments, consisting of a living room and dining room, a kitchen, a bathroom, and an unspecified number of bedrooms. Each apartment at issue here was leased to four local college students for a twelve‑month period. The students, all adults, were not related to each other or to the defendant lessors.[4] The students sharing an apartment each had access to the entire apartment and the use of all […]
E & J Properties, LLC v. Medas, et al. (Lawyers Weekly No. 10-050-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11249 E & J PROPERTIES, LLC vs. LISA A. MEDAS, trustee,[1] & others.[2] March 19, 2013. Zoning, Variance, Lapse of variance, Conditions. Time. The plaintiff, E & J Properties, LLC, commenced this action in the Land Court, pursuant to G. L. c. 40A, § 17, challenging the decision of the zoning board of appeals of Fall River (board) that reversed an order issued by the Fall River building inspector. The building inspector’s order had required the trustee of the C.B.L. Realty Trust (trust) to cease and desist from violating a city ordinance with respect to its execution of a variance previously granted to the trust for certain real property owned by it. After trial, a judge in the Land Court affirmed the board’s decision. The plaintiff appealed. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed, E & J Props., LLC v. C.B.L. Realty Trust, 81 Mass. App. Ct. 1118 (2012), and we then granted the defendants’ applications for further appellate review. For the reasons that follow, we affirm the judgment of the Land Court. Facts. In 2005, the trust applied to the board for a variance “[t]o demolish existing structures and to subdivide [the subject property] into twenty . . . buildable lots for use as sites for single-family residences.” With its application, the trust submitted a plan indicating that an existing structure, referred to in this litigation as the Global Glass Building, was to be demolished. After consideration, the board issued a variance; in its written decision the board stated that the variance included “permission to demolish the existing structures and divide property into twenty lots and construct a single family dwelling on each lot.” The written decision further provided that the “[r]ights [a]uthorized by this [d]ecision shall be exercised within one year of the grant.” Within one year of the board’s variance decision, the Fall River planning board indorsed an “approval not required” plan that showed the property divided into twenty lots, and sixteen of the lots were sold to the plaintiff. Thereafter, the plaintiff began construction of housing units on some of those lots, and the trust demolished a portion of the Global Glass Building. The trust retained for itself the four lots shown on the plan that were […]
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