Easement and after-acquired property

Landowners who purchase and combine multiple, adjoining lots can sometimes find themselves in a quandary if there is an existing easement that benefits only one of those lots. To illustrate, picture three adjacent lots: A, B, and C. When these lots were initially created, an easement was created on Lot A so that the owner of Lot B could access his lot. There was no similar easement created for Lot C at that time.

Presently, Landowner 1 owns Lot A. Landowner 2 purchased Lot B, and then a few years later, also purchased adjacent Lot C, which was undeveloped. Landowner 2 would like to tear down the house on Lot B, and instead build a new house on his land so that it straddles both Lot B and Lot C. He would also like to use the easement that exists on Lot A in order to access his new house only in emergencies or for repairs.

The question is, can he?

Black letter law initially suggests that the answer is no. It is well-settled law that “[a]fter-acquired property can benefit from an easement . . . only if the easement is an easement in gross, a personal interest in or right to use land of an other, or the owner of the after-acquired property receives the consent of the owner of the servient estate.” McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359, 364 (1996). This is because a right of way easement can only be used to access the property that was specifically made to benefit from the easement. It cannot be used to access other property which happens to have the same owner as that which benefits from the easement, regardless of whether the properties are adjoining and have been merged into a unitary parcel. To allow such use of the easement might result in overburdening or overloading of the easement rights originally granted.

Yet, this principle seems slightly unfair when the underlying use of the dominant estate is not necessarily being enlarged, but will instead just be moved so that it straddles both the dominant estate and the adjoining lot. In our example, Landowner 2 is trying to tear down the existing house (which is located on the dominant estate or the lot with the benefit of the easement) and construct a new home on land that now includes both Lot B and Lot C. Should the fact that Lot C did not have the benefit of the easement bar the use of that easement in totality? From an equitable standpoint it does not seem reasonable.

Sometimes, however, the language of the original grant of easement is such that after-acquired property can benefit from the easement. See, e.g., Carbone v. Vigliotti, 222 Conn. 219 (1992) (which is not binding in Massachusetts, but an interesting case nonetheless). But these kinds of cases are fact intensive and entirely dependent on the exact wording of the deed or other granting instrument.

If this kind of drafting or interpretation is not available or helpful, what other options would Landowner 2 have in response to a threat from Landowner 1 that use of the easement, in any capacity, will be challenged?

Well, for starters, unless there is actual, present use of the easement, the case for overloading the easement might be premature and not ripe for adjudication. It’s one thing to lay out house plans on paper, mention the easement in deeds and other conveyancing instruments, or even build the house. It’s quite another thing altogether to physically use the right of way in conjunction with the new house. Moreover, even if there is a viable case to be made for overloading by the servient estate holder, it does not mean that the easement is then somehow extinguished en toto. The dominant estate holder does not lose his rights simply because he may have overloaded the easement at some time. There may very well be some use of the easement that can remain that are short of serving the new house and entirely contained on Lot B.

As with most cases, the best course of action for all interested parties, but particularly the dominant estate holder, is to first figure out if there is a way to convince the servient estate holder to consent to the use of the existing easement in conjunction with the proposed use. In many cases, the proposed use (and related easement access) is less intense than the rights that currently exist. If that does not result in a workable solution for the dominant estate holder, then pursuing a declaratory judgment action in court might ultimately be the next step.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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Jeffrey T. Angley’s discussion with Bradley C. McKenzie

While talking about with Jeffrey T Angley P. C. we ended up informed that the civil engineer often designs the actual side to side aspect of an area growth challenge. Their particular responsibilities include developing site facilities items including amenities (drainage, sewer line, drinking water), roadway style, parking zone style and design, septic systems, etc and present property setting up, design and construction management solutions intended for non commercial, professional, institutional and fun assignments intended for private and non-private buyers.

Based on Phillips & Angley maximum projects, many of us ordinarily get involved with the particular creation in the assignments by offering feasibility studies to distinguish , advancement selections for purchasers in addition to advise them tips on how to take full advantage of their area within community, federal and state letting limitations. When the design growth stage is finished, we report with neighborhood boards [and pertinent state and federal authorities] for your permitting stage. The most labor-intensive section with regard to MEG staff members are the particular design and style development step.

Jeffrey T. Angley was informed that inside the civil engineering area there are lots of areas of expertise. Jeffrey T Angley could think about civil engineering in order to roughly include things like geotechnical, structural, transportation, environmentally friendly engineering, and also sanitary engineering procedures. At MEG, we have engineers focusing on [disciplines that include] property preparation, utility layout (drainage, sewer line, drinking water, etc.), septic systems as well as wastewater therapy facilities, architectural along with ecological engineering. Some people begin to specialize during college simply by choosing a distinct discipline, but usually whatever we see is the fact that from the first decade involving a person’s profession, offered their particular expertise and also the organization they could work for, they can be confronted with lots of disciplines after which move in the direction of a specific one eventually.

An area that we are seeing far more companies being concerned is usually sustainable design and style. It is actually in general recently been recommended by the state and sometimes on the community stage. Our contribution as civil designers along with LEED qualifications is employing maintainable style and making use of lower effect water drainage (LID) layout, which generally calls for significantly less houses similar to minimizing, catch basin in addition to manholes, and a lot more very best supervision routines like oiled swales, in addition to raingadrens and style these features along with the all-natural terrain in order that they far better comport to current geography along with the ecosystem.

What we’ve got frequently observed since 2005 and 2006 onward, is that the state is attempting to help making it possible for functions and take away sheets of paperwork and inadequacy. As an example, the natural Heritage and Endangered Species Program (NHESP) has created completely new polices which might be more adapted along with help the particular permit process for certain vulnerable species. The Office of Environmental Protection (DEP) has removed the Sewer Extension Permit Program this summer (2012) and has additionally released an quick way of wetland making it possible for any time submitting notices of intent (NOI).

Furthermore, in 2010, Massachusetts approved the Permit Extension Act, and it was simply lengthened for the next 2 yrs this summer (2012). That [legislation and extension] continues to be the one most significant as well as accelerating transformation which has been produced in regards to constructive economic influences to our clients” assignments.

On the other hand, while the state government adjusted in a beneficial way, a lot more cities are establishing tighter zoning and wetland bylaws that result in producing local permitting projects smaller. There’ve definitely not been way too many substantive adjustments in allowing land development assignments at the federal level.

Other trends we’re seeing: A lot of villages have provided inclusionary zoning (affordable housing) elements in their zoning bylaws and have added cluster subdivisions, versatile open space, along with other overlay regions which allow increased density jobs to deter designers someone from enabling comprehensive permit projects beneath n M.G.L. Ch. 40B. Cities happen to be a lot more proactive within building their own individual cost-effective casing bylaws, to be able to keep away from being targets regarding 40B and determine wherever affordable property can be formulated.

To understand more details on the Jeffrey T Angley P. C and real estate law, visit – Jeffrey T Angley at – http://www.jeffreytangleypc.com/

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Solving boundary issues with Phillips & Angley

It is certainly not unusual to know about tree chopping cases when a landowner desires to cut the particular branches of a neighbor’s tree that overhang the common boundary line-which is lawful, to a point-or even those cases when any person trespasses to the territory of another to reduce or even cut down trees and shrubs completely situated about that lot-which is against the law. Whatever the fundamental motivation for this kind of shaping and cutting, Massachusetts law is reasonably clear regarding whether responsibility and damages will certainly take place under those occasions’ informs Jeffery T. Angley.

However why don’t you consider every time a tree equally straddles two lots? Not simply the branches, but the principal trunk itself? Exactly who owns the sapling, and, most importantly, can all or a portion of it be legally taken away? These kinds of concerns turn into vital every time a landowner really wants to improve or perhaps within the boundary line which need elimination of the tree.

Interestingly enough, Massachusetts case law is largely unclear about just what privileges are available whenever a tree trunk grows across a boundary line. In one circumstance, Levine v. Black, 312 Mass. 242 (1942), the court had the capacity to address the issue, but eventually punted. At best, the Levine court mentioned that among other states the tree was regarded as possessed as renters in common regarding the two border properties, or that all landowner possessed the area of the tree on his individual lot, but didn’t specially pick which privileges implement in Massachusetts.

Stating Levine, a fairly latest tree cutting decision (under Rule 1:28) issued by the Appeals Court ordered that complete value damages be taken care of cutting a tree which straddled the boundary line. The decision failed to state the character of property rights which helps the actual awarded damages, and only vaguely alluded towards the existence of privileges within the tree that protect against another’s unilateral action that causes harm to or even destroys the tree. See Lasell College v. Fox, 53 Mass. App. Ct. 1103 (Nov. 2, 2001) (“Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.”).

Within some other areas, the legal courts have more or less backed the notion that a tree developing upon two lots is owned as renters in common or mutually, and that such trees and shrubs can’t be destroyed without approval, neither might they be clipped in order to trigger material injury. See, e.g., Garcia v. Sanchez, 108 N.M. 388 (1989) (citing Annotation, Rights and Liabilities of Adjoining Landowners As to Trees, Shrubbery, or Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372, 1374-1375 (1969)); Young v. Ledford, 37 So.3d 832 (Ala.Civ.App. 2009), writ of mandamus denied Young v. Ledford, 79 So.3d 656 (Ala. Civ. App., 2011), (reversing lower court order that authorized removal of entire boundary line tree because, under Alabama law, “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment”) informs an insider from Jeffery T. Angley.

Consequently what’s a landowner to try and do? At least, when a tree can be found to be expanding on two lots, the actual sensible landowner need to look for the consent of his next door neighbor in the event it is required to take out or even significantly reduce the tree. Depending on the instances prompting the tree removing, permission could be given if the neighbor is agreeable. However, in those cases in which the neighbor is not willing to have the tree cut down, practical alternate options include revising strategies in order that it does not need virtually any tree removing or substantial shaping to the point of harm or even bringing a declaratory judgment action in the courtroom to have the court determine the parties’ respective rights.

To understand more details on the Jeffrey T Angley P. C and real estate law, visit – Jeffrey T Angley at – http://www.jeffreytangleypc.com/

Article Source – http://www.jeffreytangleypc.com/blog/2012/08/trees-boundary-lines-important-considerations.shtml

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Phillips & Angley Thoughts about Excavation & Blasting Activities

Based on Phillips & Angley, before beginning any sort of excavation task such as tunneling as well as blasting; developers and landowners should understand the often-overlooked responsibility they give to neighboring properties in order to prevent nuisance or negligence obligation.

A landowner owes an obligation of lateral-subjacent assistance to adjacent properties. As a result, all property owners have entitlement to expect to have that naturally occurring soil and water situations, including the lateral assistance offered by adjacent properties, will continue to be in their natural state. It is really a natural property right.

However, what happens when a parcel of land needs to be excavated for development? Are there consequences for or considerations to be made by the developer or landowner? Jeffrey T Angley says, of course, is yes. The reason for this is that it is well settled that for an excavation causing an injury to the soil of an adjoining owner in its natural state an action will lie, but that no recovery will be allowed in the absence of negligence or a direct trespass for an injury to structures by excavating the adjoining land.

There will be strict liability for landowners (or their contractors) that digs blast or tunnel on their land if they eradicate or hurt the lateral help benefitting neighboring property and cause damage to the land in its natural state.

When it comes to removal of bedrock for development, certain methods of excavation and blasting are more destructive than others. This depends on the nature of the project site in relation to its surroundings. For example, shock waves, vibrations, and cracks and fissures in the bedrock extending beyond the property line-are just some of the potential consequences of blasting. This can create an unsafe and hazardous situation for adjoining properties, and potentially subject the developer and/or landowner to claims of nuisance and negligence from adjoining property owners.

Hence, while excavation and also similar progression is definitely not restricted, it does have to have some focus, particularly because interference with lateral support or conduct deemed a trespass or negligent can result in money problems owed to affected properties.

Developers, contractors and adjoining landowners can take some precautions as mentioned below:

Look at and know the proposed excavation plans prior to permits are issued, if possible, but certainly, earlier than excavation starts off. This overview will have to have the expertise and input of qualified geotechnical consultants and engineers. They shall be looking to decide if the plans will harm adjoining properties.

For projects requiring blasting, consider alternative methods of excavation and mitigation in light of the proximity of surrounding properties, buildings and uses. There are often less intrusive methods of excavation available to developers that could help avoid the potential for negligence.

Recognise that several adjoining buildings, structures and uses-such as towers and antennas anchored with person wires deep into the bedrock-may not have regular blasting standards that will allow for a risk-free blasting plan. This is where developers really need to be particularly sensitive to different ways of excavation.

Developers and contractors must remember that it is no defence to a valid nuisance claim that their conduct was under the guise of a duly issued permit. Their conduct, notwithstanding the town or city’s approval, can still result in a lawsuit if it substantially and unreasonably interferes with another landowner’s use and enjoyment of his land.

In general, it is important that virtually any excavation or blasting task prevent disrupting or destroying the lateral support provided to neighboring properties.

Disclaimer: The information contained in this article is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel.

To know more details on the Jeffrey T Angley P. C and real estate law, head to – Phillips & Angley at – http://www.manta.com/c/mm3vzhb/phillips-angley

Resource For This Article – http://www.jeffreytangleypc.com/blog/2012/08/excavation-blasting-activities-the-duty-of-lateral-support.shtml

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Boundary Disputes an observation by Jeffery T Angley

Keeping peace with the neighbors is quite a task especially if one needs to construct something new around your place. Disputes among neighbors are quite common and one of the most common reasons for these disputes can be categorized as Boundary Disputes. According to Jeffery T Angley a formidable, focused counsel for Massachusetts Land owners and developers boundary disputes can arise in a number of ways. These reasons can be as small as installing a fence or septic system to claims of ownership on a piece of land that shares a common boundary between the neighbors.

Another reason for boundary disputes according to Jeffrey T Angley P. C. can be quite interesting where a landowner discovers that his land has been encroached upon by another property owner. This can be due to the reason that property lines are not located as originally thought and this flaw comes into light only after a survey undertaken by a qualified land surveyor.

These types of disputes are not really confined to developed properties only and there is ample of chance that such boundary disputes may arise in undeveloped properties also. After all these undeveloped properties are also going to be developed one day and property owners need to keep an aye on these properties to ascertain that their properties remain the way they were when they purchased it. Unknown boundary discrepancies may show up while subdividing these properties.

There are several ways to litigate these kinds of boundary disputes. The titles under which these kinds of litigations can be dealt are readily available with attorneys who will ensure after having a in-depth analysis of the dispute as to which title will best fit in the present set up. Attorneys at Phillips & Angley feel that deeds are the primary source of evidence in boundary disputes no matter what reason the boundary dispute is arising from. But one should be careful while taking deeds into consideration as evidence in Boundary Disputes as very old deeds have their own limits.

These old deeds may have some flaws as old monuments like trees may no longer be present on the actual site. Obscure and imprecise wordings again add to the disadvantage of these old deeds. Apart from this there is always a possibility that two different surveyors may report two different reports for the same property which further complicates the deed and mar its chances of being presented in the court as material evidence.

Litigants need not loose hope as there are several other documents that can be presented in the court as evidence. These documents can be assessor’s plans, historical maps, photographs, instrument surveys undertaken by a qualified land surveyor, Land Court registration plans, testimony about past use of the area etc. It hardly matters how a boundary dispute starts its important for one to have collect the necessary paperwork and material evidence, analyze it with experts like Jeffery T Angley and work for the ultimate goal that is solving the boundary dispute.

For more details on Jeffrey T. Angley, P.C., Jeffrey T. Angley and Phillips & Angley visit – http://www.jeffreytangleypc.com/
Disclaimer – The information provided in the post is general and intends to give information which needs to be cross checked with the concerned experts. No Personal legal advice is intended to be given to anyone via this post. If you have a legal issue please contact a legal counsel.

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Jeffrey T. Angley – Here’s Some Sorely-Needed Good News

As we brace for the after-math of the S&P downgrade of US credit, we thought we’d pass along any good news we can find. McGraw-Hill Construction reports that new construction starts were up 15% in June over May figures, to the highest reading for the Dodge index this year. Nonresidential building surged 11%, nonbuilding (roads/infrastructure) climbed 34% and residential building ticked up 1%. The largest projects of nonresidential building were privately-funded projects, which is a good sign. Large projects are:

$160 million corporate campus in Houston, TX
$147 million federal building in Ft. Snelling, MN
$75 million distribution center for Amazon.com in SC
$60 million corporate campus renovation in Seattle, WA
$50 million hotel renovation in Philadelphia, PA

Institutional construction forged ahead 15%, with the aid of several large hospitals, and entertainment/amusement construction was buoyed by several large projects to show an increase of 90% over May.

In full disclosure, the June numbers look good (and they’re not BAD) because May had been so dismal. Nationally, the first six months of 2011 are 7% behind the same period for 2010 in total new construction starts, with the South Atlantic region down 10%. But here’s hoping that we’re beginning to see some brightening of the economic gloom of the past three years.

If Phillips & angley can assist you in preparing door and door hardware specifications that offer your owners and clients VALUE, please let us know! We can work within your fee structure to meet your needs.

If you are a landowner or developer in Eastern Massachusetts, the attorney who protects your rights in any real estate legal matter is Jeffrey T. Angley, founding member of the law offices of Jeffrey T. Angley, P.C., and principal of Phillips & Angley.

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Purchasing a Condominium: Know Your Documents

For the tenth straight month, real estate transactions continue to trend positively in Massachusetts.Jeffrey T. Angley has been in the business of protecting landowners and real estate developers from the past 25 years helping them overcome daunting legal obstacles in residential and commercial projects throughout Eastern Massachusetts.

Specifically, condominium and single-family home sales in Massachusetts are going up. On March 13, the Massachusetts Association of Realtors reported that sales of condominiums have been increasing since the same time in 2011, and that the number of condominiums under agreement in February 2012 is up 35.3 percent compared to February 2011.

Given that condominium buyer confidence is on the rise, it seems timely to review the relevant documents involved in the sale of a condominium.

· Offer to Purchase – the instrument used by the potential buyer to extend an offer to purchase the condominium (or home); the buyer can accept the offer or counteroffer with an alternative set of terms

· Purchase and Sale Agreement (P&S) – the instrument executed by both the potential buyer and seller which sets forth the material terms of the transaction, including sale price, deposits, closing date, contingencies such as cash due at closing and the buyer obtaining mortgage financing, and disclosure of other pertinent information

· Rider / Addendum / Exhibit – a document sometimes attached to the Purchase and Sale Agreement that further explains or outlines terms contained within the P&S, such as the property description or deadline extensions; these are added either at the time of signing the P&S or afterwards, but only upon mutual agreement of the buyer and seller

· Declaration of Trust -the instrument that created the condominium association responsible for undertaking the day-to-day operations of the condominium

· Master Deed – the instrument that originally “created” the condominium by submitting the underlying land and buildings to the provisions of M.G.L. c. 183A; it is the governing instrument for the condominium, including provisions for unit dimensions, common areas, voting authority, amendment procedure, fees and other pertinent provisions

· By-Laws – these can either be a separate document or part of the Declaration of Trust, and they provide additional rules and regulations governing the condominium units and common areas, such as whether pets are allowed or whether units can be rented out

· Unit Deed – this is the instrument that will transfer ownership from the buyer to the seller, and typically indicates the boundaries of the unit and designates exclusive use common areas (either directly or through reference to the Master Deed)

· Plans – there should be available a set of plans depicting the common areas of the condominium as well as the individual unit being purchased, including exclusive use common areas

Moreover, in instances where the condominium is located on Registered Land, prior Land Court approval may be needed for some documents in advance of the conveyance (i.e. first unit deed or amendments to plans or Master Deed). To ensure that the buyer’s interests are fully protected, a careful review of condominium documents by competent real estate counsel is recommended before the sale is finalized.

For an in-depth resource about the many aspects of condominiums, check out New England Condominium’s website.

If you are a landowner or developer in Eastern Massachusetts, the attorney who protects your rights in any real estate legal matter is Jeffrey T. Angley, founding member of the law offices of Jeffrey T. Angley, P.C., and principal of Phillips & Angley.

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