Ruling leaves homeowners separated from beach lot

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In brief

• Appeals Court reversed Land Court ruling on Nantasket Beach title dispute
• Judges found derelict fee statute did not apply to 1885 Beach Avenue plan
• Court relied on historic 1915 precedent in Hobart v. Towle
• Case remanded with adverse possession and easement claims still pending

The state’s derelict fee statute does not apply to extinguish a way recorded in 1885 that separates the owners of a home from an undeveloped beach lot that they also own, the Appeals Court has ruled in reversing a Land Court decision.

John and Kathleen Ferrara purchased a home in the Nantasket Beach area of Hull in 2017. They bought an ocean-front beach lot at the same time. Between the two parcels is an undeveloped lot designated as a portion of Beach Avenue on a subdivision plan recorded in 1885.

In 2022, the town brought an action in Land Court seeking to establish and quiet title to the undeveloped 60-by-50-foot way. The Ferraras answered with a counterclaim asserting that they held superior title to the disputed parcel.

Judge Kevin T. Smith denied the town’s motion for summary judgment on its claim to quiet title and granted the Ferraras motion for summary judgment on their counterclaim. Specifically, Smith ruled that the Ferraras held the fee title to the disputed area pursuant to the derelict fee statute, G.L.c. 183, §58.

But a divided panel of the Appeals Court reversed, with the majority concluding that the statute did not apply. The panel cited the Supreme Judicial Court’s 1915 decision in Hobart v. Towle, which held that an 1887 deed that conveyed ways in Nantasket previously retained by the grantor, including Beach Avenue, was effective.

“Based on the undisputed facts, and in light of the Supreme Judicial Court’s ruling in Hobart v. Towle, we conclude that the derelict fee statute does not apply in this case because no ‘fee interest of the grantor’ … in the Beach Avenue way was conveyed to the Ferraras,” Judge Robert E. Toone Jr. wrote for the majority. “Rather, the fee in the way was conveyed to another party in 1887, then to the town in 1913. Grantors cannot convey what they do not own.”

In a dissent, Judge Andrew M. D’Angelo wrote that the result reached by the majority ignored the Legislature’s mandate that the derelict fee statute be applied retroactively unless one of the statutory exceptions applies.

“Critically, challenges to retroactivity implicate a ‘test of reasonableness’ that the majority has seemingly avoided,” D’Angelo wrote. “That test demands that the challenging party ‘carry a heavy burden’ of proving the inequity of retroactive application, and ‘[e]very rational presumption is indulged in favor of the validity of the statute.’ That burden has neither been alleged nor met, and the majority employs its own presumption that the Legislature did not intend the statute to apply as written.”

The 31-page decision is Town of Hull v. Ferrara, et al., Lawyers Weekly No. 11-017-26.

Unconstitutional statute?

Counsel for the town, Boston’s Nathaniel Stevens and James B. Lampke of Hull, issued a written statement on behalf of their client applauding the decision.

“It affirms the Town’s long-standing position that Beach Avenue is owned and under the control of the Town,” they stated.

Hingham attorney Adam J. Brodsky, who represents the defendant homeowners, declined to comment.

If you’re reading between the lines of [the dissent], the Legislature seemingly enacted something that may be unconstitutional.

— Jonathon D. Friedmann, Boston

But Boston real estate litigator Jonathon D. Friedmann said he agreed with the conclusion reached by the majority.

“I don’t think the derelict fee statute applies because of the factual underpinnings [of the case],” Friedmann said.

He added that the majority opinion is a must-read for practitioners.

“The beauty of the decision is that this is a very complex area, but in a complex decision, they were able to distill it down in a way that made it readable for practitioners,” Friedmann said.

Because neither party raised the question of the constitutionality of the derelict fee statute itself, the majority was able to sidestep the question of whether the retroactive application of the law, which was enacted in 1971, violates due process by unreasonably impairing longstanding property interests, Friedmann noted.

“If you’re reading between the lines of [D’Angelo’s dissent], the Legislature seemingly enacted something that may be unconstitutional,” Friedmann said. “He’s seemingly pointing towards the deprivation of property rights as an unconstitutional outgrowth of what the Legislature did. It is a real issue, and it’s interesting that no one has challenged it yet.”

Hyannis real property attorney Terrence J. Hurrie said the case drives home the point for lawyers that obscure clauses in old deeds can have far-reaching, real-life implications.

“Check that chain of title,” Hurrie advised. “Those earlier developer deeds, trustee conveyances and historical acquisitions can all come into play.”

Hurrie said he often sees issues similar to those raised in Ferrara pop up in his practice on the Cape.

“A lot of ‘paper streets’ do exist raising issues that often apply to beach access,” he said.

Hurrie noted that the defendant homeowners in Ferrara still have some options available. Though the Land Court’s judgment has been vacated, the case has been remanded for further proceedings.

“The Ferraras still have counts of adverse possession and prescriptive easement pending,” Hurrie said. “Massachusetts municipalities are generally immune from those claims but only if it is shown that the land is held by Hull for a public purpose. If the answer to whether it is held for a public purpose is ‘no’ — i.e., as a paper street it was never accepted or used — immunity may not be as cut and dry as it seems and it becomes an extremely fact-intensive case that may be worth watching to see how it ultimately plays out.”

Action to quiet title

According to undisputed facts, an 1885 subdivision plan recorded for Nantasket Co. showed a portion of a 500-acre parcel, including the Ferraras’ properties on either side of the disputed section of Beach Avenue.

As found by the Land Court, the disputed Beach Avenue section “has never been constructed as a way and is now a dune.”

In 1886, the Nantasket Co. conveyed the properties at issue to Henry Norwell.

The lot on which the Ferraras have their home at the time was described as bounded “Easterly by the Westerly line of Beach Avenue.” The beach lot was described as bounded “Westerly by the Easterly line of Beach Avenue.”

In February 1896, Norwell conveyed the beach lot and the house lot together in a single deed to Gustavus Damon. The deed repeated the boundary descriptions limiting the properties to the respective side lines of Beach Avenue. The lots were subsequently conveyed together using the same language to purchasers in April 1896, 1902, 1907, 1946, 1948, 1951 and 1973.

In 2017, the Francine F. Townsend Living Trust conveyed the lots to the Ferraras.

In Land Court, Judge Smith recognized that, under the common law rule of interpretation, Nantasket Co. did not intend to convey its rights in the ways on the 1885 plan in conveying the parcels in the 1886 Norwell deeds. That meant that Norwell would not have owned a fee interest in the disputed section of Beach Avenue.

However, Smith concluded the derelict fee statute superseded the common-law rule of construction. He found the statute “requires the conclusion that the Nantasket Company conveyed its rights in the ways described in the Norwell deeds as shown on the 1885 Plan.”

Accordingly, the judge concluded that “when Norwell conveyed lots to Gustavus Damon in 1896, which included what is now the House Lot and Beach Lot, title to the Disputed Area between them was included by operation of the Derelict Fee Statute. Thus, every conveyance of the House Lot and Beach Lot, ending with the Ferraras, has included title to the Disputed Area.”

No derelict fee

The derelict fee statute provides that “[e]very instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument.”

The statute includes exceptions for instances in which “the grantor retains other real estate abutting such way, watercourse or monument” and when “the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.”

The Legislature provided that the statute applied with certain exceptions both retroactively to conveyances prior to the law’s Jan. 1, 1972, effective date and prospectively to subsequent conveyances.

In the majority opinion, Toone explained that the purpose of the statute was to address the situation in which a grantor conveyed away all their land abutting a way or stream but “unknowingly” failed to convey any interest they may have in land under the way or stream, thus apparently retaining their ownership of a strip of the way or stream.

“The statute sought to quiet title to these ‘sundry narrow strips of land that formed the boundaries of other tracts,’” Toone wrote.

He explained that the statute created a presumption that a deed bounding on a way conveys the title to the center of the way.

Toone wrote that the majority disagreed with the conclusions reached by the lower court given undisputed evidence that, in 1887, the year after the lots were conveyed to Norwell, Nantasket Co. conveyed a fee interest in Beach Avenue to another party, Eben D. Jordan.

“The derelict fee statute, enacted eighty-four years after that, did not operate to undo that conveyance,” Toone wrote.

The majority noted that the SJC’s decision in Hobart in large part dictated its conclusion.

“The decision in Hobart … confirms that, under the then prevailing common-law rule of construction, the trustees of the Nantasket Company did not convey its rights in the ways on the 1885 Plan to Norwell in 1886,” Toone wrote. “Rather, the company retained its fee interests in those ways, including the disputed area of Beach Avenue, until the following year, when it conveyed them to Jordan. None of the subsequent conveyances of the house and beach lots included a fee interest in Beach Avenue, knowingly or otherwise.”