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Recent Cases

Click link to read about our pending cases, or read about our decided cases below:

Burke, et al. v. Spalenza, et al., Land Court Dept. Misc. Case No. 11-455441 (2014 decision), in which we filed a suit for declaratory and injunctive relief on behalf of residential land owners against their neighbor for purposes of determining the scope of a shared driveway easement that our clients relied on for vehicular access to their house. The easement was created under a 1902 deed, but no recorded plan or dimensional calls accompanied the 1902 grant. A two-day trial took place involving extensive expert testimony from surveyors and civil engineers, coupled with testimony regarding the history of actual use dating back to the 1970s. We offered two alternative proposed easement surveys on behalf of our clients, and the defendants offered a competing survey that proposed to significantly limit the available easement space so as to maximize use of the surrounding area for parking purposes. The Judge issued a decision and entered a judgment adopting our client's first choice of easement surveys, while rejecting the alternative survey offered by the defendants. The case is now pending the defendants' appeal.

Alvarez v. Figueiredo, Land Court Dept. S-Petition Case No. 10-02508 03-001 (2013 decision), in which we defended a residential home owner regarding a registered land dispute. The plaintiff sued our client claiming that the assistant recorder of the Land Court in the district where the land lies improperly drafted a certificate of title in our client's back title by including a rear yard that the plaintiff's predecessor-in-title intended to retain. Following cross-motions for summary judgment in which the plaintiff offered un-rebutted affidavit testimony from the prior owners supporting her theory of drafting error in the underlying deeds, the Judge agreed with our defense that our client is an innocent bona fide purchaser who relied on her immediate predecessors' certificate of title. The Judge dismissed the plaintiff's complaint, and the Appeals Court affirmed.

Black, et al. v. Klaetke, et al., Land Court Dept. Misc. Case No. 08-378123 (2012 decision), in which we defended two landowners in a lawsuit brought by their neighbors affecting their adjoining townhouses in Boston's South End. Our clients' neighbors filed a complaint to quiet title to a side yard and basement passageway, which historically had been subject to a partial fee simple interest and easement rights held by the owners of our clients' house. The dispute arose from a change in deed descriptions adopted by the City of Boston and Boston Redevelopment Authority in connection with the South End Urban Renewal Plan. We obtained partial summary judgment after persuading the Judge that the relevant deeds qualify for a rare exception to the common law rule of deed interpretation that monuments are given a higher priority than measurements in the hierarchy of deed calls. The case then settled prior to proceeding to trial on the issues of adverse possession and implied easement.

Washington Mutual Bank, F.A. v. Spencer, et al., Land Court Dept. Misc. Case No. 02-278920 (2011 decision), in which we defended a mortgagee sued for contempt of a 2006 Land Court judgment that our office obtained. The 2006 judgment established the partial mortgage priority of our client pursuant to the doctrine of equitable subrogation. In an anomalous fact pattern, the borrowers continued to make payments to our client for several years following entry of judgment, while making no payments to the opposing mortgage holder. Following his 2010 foreclosure sale, our opponent demanded a discharge from our client based on his accounting that treated 100% of the payments received by our client over the life of the loan as paying down its first priority position as equitable subrogee. We took the position that a more proper accounting divides the payments pro rata between the portions of the loan balance secured by our client's first and third priority positions. The Judge ruled in our favor, which resulted in additional loss mitigation in excess of $80,000.

Ambrosini, et al. v. Cawley, et al., Land Court Dept. Misc. Case No. 06-334126 (2010 decision), in which we represented a mortgagee named as a co-defendant in a highly publicized suit brought by a group of affordable housing unit owners in a downtown Boston conduminium seeking reformation of the condominium master deed to adjust the percentage interests in common areas such that they would pay lower monthly fees. The plaintiffs argued that by operation of a recorded covenant restricting the re-sale prices of their units, the Massachusetts condominium statute required the master deed to allocate a higher percentage interest in common areas to the market rate units. The Judge ruled that the facts of the case did not support the equitable relief requested. While the Judge did not explicitly address the issue of statutory interpretation, the provision in question was recently amended to eliminate such controversies at least on a forward moving basis.

Cater et al v. Bednarek et al, Land Court Dept. Misc. Case No. 98-250365 (2010 decision), in which we defended a Truro landowner in a multi-party dispute over an ancient easement. After Phase I of the bifurcated trial, the plaintiffs established the continued existence of a general right of way easement established in an 1899 deed, but never laid out on the ground or fixed in location by the record title. In Phase II of the trial, the Court heard evidence regarding the most reasonable location, dimensions and paving schematics of the easement, which had the potential to burden one or more of four lots, including our client's land, all of which abut pristine dunes overlooking Cape Cod Harbor referred to as the "Hopper landscape". The trial involved extensive expert testimony by surveyors and engineers. The Judge rejected the plans offered by two of our co-defendants, which proposed to run the easement through our client's back yard. Crediting testimony from our engineering expert, the Judge ruled that the most suitable location is along the boundary line of two co-defendants to the north of our client's lot. The Judge also rejected the plaintiffs' argument, opposed by all defendants, that a forty-foot wide subdivision road was within the scope of their easement rights.

AmTrust Bank et al v. TD Banknorth, N.A. et al, Land Court Dept. Misc. Case No. 07-350750 (2010 decision), in which we brought claims on behalf of our client, a mortgage lender, seeking to establish the first position priority of two mortgages held by our client over a senior mortgage of record held by the defendant mortgage lender. Following a two-day bench trial, the Judge found that our client closed its mortgage refinancing transaction in reasonable reliance on a payoff statement issued by the defendant mortgage lender. The Judge ruled that the defendant was estopped from claiming priority of its mortgage where it provided a payoff statement covering only one of the two promissory notes secured by its mortgage, accepted payment from the proceeds of our client's mortgage loan, but later refused to issue a discharge by reason of the outstanding second note.

Gee et al v. Kovalko, Suffolk Superior Court No. 07-00544 (2009 decision), in which we brought claims to quiet title and for trespass on behalf of a Boston landowner against his neighbor. After a three-day bench trial, we successfully defended against a counterclaim of adverse possession to a strip of land claimed by the abutting owner for a driveway to the rear of his lot. The trial Judge rejected the claim of adverse possession and affirmed the property lines of record after trial.

New Century Mortgage Corp. v. Giberson Land Court Dept. Misc. Case No. 06-330244 (2009 decision), in which we obtained a decision on our contested motion for summary judgment that our client, a mortgage lender, was entitled to mortgage reformation to include the one-half title interest of a joint tenant not named in the mortgage. The defendant retained counsel and vigorously opposed the relief we sought, emphasizing facts suggesting that the lender did not come into equity with clean hands. We nonetheless persuaded the Judge to grant the relief we sought on the basis of certain facts the defendant was compelled to admit to during her deposition testimony.

Hobson v. Hobson et al, Land Court Dept. Misc. Case No. 05-310562 (2008 decision) in which we successfully defended two mortgagees from the plaintiff's claim that her signature was forged on a 1995 deed to her son and that she owned title to the property free and clear of the two mortgages that her son entered into. The case resulted in a three-day bench trial involving a number of witnesses offering conflicting versions of the surrounding circumstances, including testimony from the notary herself that she witnessed a third party signing the deed. We nonetheless persuaded the Judge that the plaintiff did in fact sign the deed in question and that, if anything, she may have signed the deed as the result of a misrepresentation that could not be binding on the mortgagees we represented, being innocent bona fide purchasers for value that relied on the notary as proof presumptive that the deed signature was not a forgery.

Emerson v. Reliable Heating, Inc. et al, Suffolk Superior Court No. 05-1833 (2007 decision), in which we defeated a motion for partial summary judgment filed by one of the defendants in a suit in which we represented a landowner who was seeking to recover certain environmental response costs that he incurred pursuant to Mass. G. L. c. 21E. One of the defendants, an environmental engineering firm that investigated the site immediately prior to our client's purchase, moved for partial summary judgment seeking to limit its liability exposure. Among other things, we persuaded the Superior Court Judge that a triable issue of fact existed on the question whether the firm owed our client a duty of care under the doctrine of reasonably foreseeable third party reliance. A global settlement was eventually reached with all defendants.

Ahern v. Town of Easton, et al, Middlesex Superior Court No. 02-5031 (2006 decision), in which we successfully defended our clients' title and easement rights against a deed interpretation challenge, an adverse possession claim, and an adverse possession under color of title claim brought by the abutting lot owners concerning an ancient paper way. There was a lengthy trial in the Superior Court involving survey and title experts.

1318 Commonwealth Avenue Condominium Trust v. Board of Appeal of City of Boston et al, Suffolk Superior Court No. 03-0340 (2004 decision), in which we successfully represented an abutter in its appeal from a decision of the Zoning Board of Appeal of the City of Boston authorizing a non-conforming use. The Board originally issued a variance and later modified its decision, without notice to abutters, to convert the permit from a variance to a conditional use permit for a prior nonconforming use. On cross-motions for summary judgment, the Judge granted our motion and set aside the Board's decision.

Other significant cases:

Cambridge/Clinton Realty Trust v. Board of Appeal of City of Boston et al, Suffolk Superior Court No. 98-04331 (2002 decision), in which we successfully overturned the decision of the City of Boston Zoning Board of Appeal, which had vacated the issuance of an open-air parking lot license based on lack of proper access. This case was tried for a week in Suffolk Superior Court, with evidence including expert testimony of our client's right of access based on the title dating back to an early 19th Century railroad overpass providing foot-access to our locus.

Chase Manhattan Mortgage Corp. v. Kissell et al, Land Court Dept. Misc. No. 258116 (2002 decision), in which we persuaded the Court on cross-motions for summary judgment that the mortgagee we represented was entitled to equitable subrogation to the rights and priorities not only of the existing mortgages paid off from loan proceeds, but also three executions and an attachment.

Town of Stoughton v. Schredni, et al, Land Court Dept. Misc. Case No. 211999 (1999 decision), in which we were lead counsel for defendant homeowners in an upscale subdivision whose boundary was challenged by the neighboring town's conservation commission. After a lengthy trial involving title and survey experts, the Court affirmed the boundary advanced by the homeowners.
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Massachusetts Real Estate and Land Court Litigation

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Appellate Practice

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