Massachusetts Zoning & Land Use Blog

Though most people are familiar with the taking of land by eminent domain-that is, through the proper statutory procedure to acquire land for a public purpose-it is likely that few have heard of a "taking in pais".

A taking in pais (pronounced "in pay" or "in pays") occurs when the Commonwealth or a municipality physically appropriates private land by acting under statutory authority but without any formal act (i.e. a vote or order of a duly authorized board).

"A taking in pais is a taking with no formal act other than the physical appropriation of the property. It is possible only when authorized by statute. The act appropriating the land must purport to be performed under the statute and must show with reasonable definiteness what is taken." Triangle Center, Inc. v. Dept. of Pub. Works, 383 Mass. 858, 861 (1992). One example would be where a municipality, having the statutory right to install sewer pipes, does so across private land without having first obtained a formal vote or order to do so.

A landowner may seek to recover monetary damages for a taking in pais under M.G.L. c. 79, § 10, which provides, in relevant part, as follows:

When the real estate of any person has been taken for the public use or has been damaged by the construction, maintenance, operation, alteration, repair or discontinuance of a public improvement or has been entered for a public purpose, but such taking, entry or damage was not effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, or when the personal property of any person has been damaged, seized, destroyed or used for a public purpose, and by such taking, damage, entry, seizure, destruction or use he has suffered an injury for which he is entitled to compensation, the damages therefor may be recovered under this chapter. If the injury was caused by or on behalf of the commonwealth or of a county, city, town or district, the officer or board of officers under whose direction or control the injury was caused shall award the damages upon the petition of any person entitled thereto. . . .

The statute also provides an avenue for relief for similar kinds of injury caused by railroad corporations and private corporations other than a railroad.

Depending on the nature of the injury to land, M.G.L. c. 79, § 10, provides different benchmarks for determining when the petition seeking damages must be filed with the board and how damages shall be assessed:

For a specific (singular) taking, entry, seizure or other act causing destruction or damage to the land, or depriving the landowner from using his property either permanently or for a definite period,

· the right to bring a petition vests as of the date of that act;

· the petition must be filed with the board within one (1) year thereafter; and

· damages shall be assessed as of the date of such act.

For all other acts (i.e. ongoing construction or improvement projects),

· the right to bring a petition vests as of the date of completion of the project;

· the petition must be filed within one (1) year after completion of such work; and

· damages shall be assessed as of the date when the property was first injuriously affected.

In those situations where the landowner misses the one-year filing deadline-or decides to forego petitioning the municipal board directly-he still has another opportunity to obtain damages. A few Massachusetts trial court cases confirm that even if the landowner fails to file his M.G.L. c. 79, § 10, petition with the board within one year, he can alternatively seek recovery in Superior Court under M.G.L. c. 79, § 14, for an assessment of damages, so long as the complaint is filed within three (3) years after the town's specific appropriation of private land or completion of the project or construction causing injury to such land.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

It has been just over one year since the Massachusetts SJC rendered its decision in Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580 (2010). Although still relatively an unknown case, it has significant ramifications for private landowners seeking damages against municipalities for acts that constitute a nuisance.

In Morrissey, the issue before the court was, inter alia, whether private nuisance claims against the Commonwealth (and, implicitly, other public employers like municipalities) falls within the scope of the Massachusetts Tort Claims Act (MTCA), or whether these claims could continue to be litigated under common law. The issue was important since the MTCA has limitations on causes of action and monetary recoveries as discussed below.

The MTCA provides, in relevant part, as follows:

Public employers shall be liable for injury or loss of property ... caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable ... for any amount in excess of one hundred thousand dollars. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer.

M.G.L. c. 258, § 2. The Legislature enacted the MTCA in 1978 in order to abolish the doctrine of sovereign immunity as well as the "crazy quilt" of exceptions to sovereign immunity that had developed in the courts until that point. By enacting the MTCA, "plaintiffs with valid tort claims [were allowed] to recover damages against the Commonwealth and other public employers, subject to certain specified limitations." Morrissey, 458 Mass. at 587.

Notably, the statute does not expressly provide for claims of private nuisance. Consequently, beginning with the 1987 case of Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (1987), the Appeals Court (and trial courts) had decided private nuisance cases against public employers as though they were outside the scope of MTCA.

Generally, a private nuisance is

. . . actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another.

Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 231 (2002), quoting Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). Private nuisance claims often include acts such as unauthorized discharge of water onto property, failure to construct or maintain retaining walls along a property boundary line, creating noise, vibrations or dust, or causing erosion.

In December 2010, the Morrissey court held that private nuisance claims against public employers do fall within the purview of the MTCA. Remarkably, this holding overruled (or abrogated) more than two decades of common law jurisprudence that had allowed private nuisance suits against municipalities and the Commonwealth to take place outside the context of the MTCA.

Moreover, the SJC went on to note that, at least in Morrissey, the private nuisance claim brought by plaintiff fell within two important exceptions to the waiver of sovereign immunity contemplated by the MTCA (in § 10): 1) claims based upon the issuance, denial, suspension or revocation of a permit; and 2) claims based upon the exercise/performance or the failure to exercise/perform a discretionary function or duty.

To the extent that it relied heavily on the overall legislative purpose of the MTCA, the SJC's decision in Morrissey is well-reasoned, and, in some aspects, not overly surprising. However, the consequences to private landowners are significant.

First, and perhaps most importantly, the maximum damages that any plaintiff can recover against a municipality or the Commonwealth for a private nuisance claim is $100,000. This amount may be far less than the actual damages suffered by a plaintiff with a valid private nuisance claim. Second, the holding in Morrissey is being applied retroactively, and thus any pending private nuisance claims against a municipality-or those that have yet to be filed for past acts-will be subject to the parameters of the MTCA. Finally, considering the contexts under which municipalities typically act-via issuance/denial of permits or under their discretionary function and duty-then it is hard to imagine circumstances where the exceptions to the waiver of sovereign immunity would not bar a plaintiff from filing suit. One issue that seems to be open, however, is whether there is a set of facts that might invoke a private nuisance claim but that could also rise to the level of a taking by eminent domain in the form of a taking in pais and so provide a remedy notwithstanding the MTCA.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Fences, driveways, structures, lawns, gardens, trees or shrubbery often extend beyond a deeded property line and encroach onto another's property. The area of land may only be a few feet wide or consist of an entire parcel. Depending on the duration and nature of the use in those areas, the person using the property of another may have a valid claim of ownership over the property (in fee simple) or some lesser degree of property rights (i.e. prescriptive easement).

Massachusetts recognizes the common law doctrine of adverse possession whereby a person can establish title in another's real property, provided that all necessary elements are met and adjudicated in court.

To prevail on a claim of adverse possession, the burden is on the claimant to prove use that is

· non-permissive;

· actual;

· open and notorious;

· exclusive; and

· adverse for twenty continuous (uninterrupted) years

See Lawrence v. Town of Concord, 439 Mass. 416 (2003) (quotation omitted); Kendall v. Selvaggio, 413 Mass. 619 (1992); M.G.L. c. 260, § 21. There is no requirement that the true owner of record receive actual notice of the use taking place on his property. If the use is "[o]pen and notorious . . . [it] is thus deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not." Lawrence, 439 Mass. at 422.

Adverse possession cases are highly fact-specific and depend on the character of the land and its surroundings. The intensity of use varies among adverse possession cases because the use must be equivalent to an exercise of dominion and control over the land that is consistent with typical land ownership, and so that it can place the record owner on notice that his property is being used adversely. For example, the type of actual use that may be sufficient to prevail on an adverse possession claim in an unpopulated, rural or forested area will be quite different than the type of use that will be required in a busy urban area. In some cases, fencing in the land may be sufficient, whereas in other cases the court may require a showing of more extensive, active use such as frequent mowing, snow removal or parking cars.

Even if the claimant has not personally used the disputed area for the full twenty years, he may still prevail on his claim by taking advantage of the doctrine of "tacking". To accrue the requisite twenty years, he may "tack" his use of the disputed area to the period of adverse use of those in privity of estate with him (i.e. his predecessors in interest). In fact, it is possible that the elements of adverse possession were established long before the current claimant.

In those cases where the use has not been exclusive, the claimant may alternatively pursue a claim of prescriptive easement. A successful claim for prescriptive easement is identical to proving a claim for adverse possession, except for the element of exclusivity. See, e.g., Denardo v. Stanton, 74 Mass. App. Ct. 358 (2009). See also M.G.L. c. 187, § 2.

Regardless of whether it is a claim for adverse possession or prescriptive easement, at trial the claimant will be required to prove all elements before declaration of those rights can be rendered. The type of evidence favored by courts in these types of cases includes photographic evidence showing the use over twenty years; testimony offered by the claimant, predecessors in interest and neighbors about the nature and frequency of the use; and invoices/receipts for work, fencing or landscaping in the disputed area.

Moreover, it is equally important that the claimant be able to show that he was at all times acting without permission from the true owner of record and, for adverse possession cases only, using the area exclusively, because these two elements are often rebutted with evidence from the owner of record. If the claimant fails on any element of adverse possession or prescriptive easement claim, he will not be able to establish title or rights in the disputed area.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Any landowner contemplating the grant of a new easement over his property should consider whether he wants the grantee to assume a portion of the property taxes. By statute, property taxes are usually assessed to the landowner. Therefore, unless there is an agreement with the easement holder (dominant estate) stating otherwise, the obligation to pay property taxes-including for the easement portion of the property-will continue to lie with the landowner even after the grant and recording of the easement.

The proper party to receive an assessment of property taxes is found under M.G.L., c. 59, § 11, which provides that

[t]axes on real estate shall be assessed, in the town where it lies, to the person who is the owner . . . , and the person appearing of record, in the records of the county . . . where the estate lies . . . shall be held to be the true owner," or "whenever the commissioner deems it proper he may, in writing, authorize the assessment of taxes upon real estate to the person who is in possession thereof . . . and such person shall thereupon be held to be the true owner thereof for purposes of this section.

See, e.g., Donovan v. City of Haverhill, 247 Mass. 69, 71 (quoting § 11). Cf. Mahony v. Bd. of Assessors of Watertown, 362 Mass. 210 (1972). Moreover, there is no statute or common law doctrine that creates or imposes a contrary obligation upon the easement holder to pay property taxes (pro-rated or otherwise) for his use of the servient estate.

Many landowners are content with continuing to assume the entire portion of real property taxes assessed to their land, especially if the grantee's use will be minimal. But for those owners who would like the grantee to assume at least a portion of the property taxes-such as a pro rata share based on the size of the easement area in relation to the total lot area-then the easement agreement or deed should expressly provide for the easement holder's obligations in this regard. Provisions within the agreement should, at minimum, include the amount of the easement holder's share of taxes (typically expressed as a percentage of total assessed taxes), how the easement holder will receive notice that payment is due, the timing and method of payment, and how penalties for late payments will be addressed.

For those landowners who are unsure about property tax obligations for existing easements that already burden their property, they should check their and the easement holder's deeds, as well as any other easement agreements that may have been entered into within the chain of title. If the property tax obligation was not expressly addressed in these instruments, then the landowner typically remains responsible for all assessed taxes. Moreover, any previous oral agreements related to property taxes may face a challenge under the statute of frauds. However, some easement instruments are drafted in a way that renders them open to interpretation about whether the easement holder may share some responsibility for paying property taxes, and thus further analysis by legal counsel should be considered.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.