by Donald R. Pinto, Jr.
The Massachusetts Land Court is one of a kind. Created in 1898 to administer the then-new land registration system, the court’s jurisdiction has since expanded to encompass an extraordinarily wide range of real estate and land use disputes. The only other state with a Land Court is Hawaii, and that court’s jurisdiction remains limited to land registration matters. The Massachusetts Land Court stands alone as the nation’s only all-purpose real estate specialty court.
Among the many types of cases it now hears, the Land Court has exclusive original jurisdiction over complaints for the confirmation and registration of land, as well as (except for certain domestic relations cases), “[c]omplaints affecting title to registered land . . . .” M.G.L. c. 185, §§ 1(a) & 1(a ½). From time to time this provision prompts questions concerning the jurisdiction of other trial courts over claims involving registered land. The Appeals Court recently addressed such a question in Johnson v. Christ Apostle Church, Mt. Bethel, 99 Mass. App. Ct. 699 (2019). Before turning to Johnson, some background on the development of the Land Court’s expansive jurisdiction will provide useful context.
The Evolution of the Land Court’s Subject Matter Jurisdiction
Originally named the Court of Registration, the Land Court was created by Chapter 562 of the Acts of 1898. The court’s jurisdiction was limited to “exclusive original jurisdiction over all applications for the registration of title to land within the Commonwealth, with power to hear and determine all questions arising upon such applications, and also . . . jurisdiction over such other questions as may come before it under this act . . . .” After a brief period as the Court of Land Registration, in 1904 the court was re-named the Land Court and its exclusive original jurisdiction was expanded to include four causes previously heard by the Superior Court: writs of entry; petitions to require actions to try title; petitions to determine the validity of encumbrances; and petitions to discharge mortgages. During the next 15 years the court was given exclusive original jurisdiction over petitions to: determine the boundaries of tidal flats (another transfer from the Superior Court); determine the existence and extent of a person’s authority to transfer interests in real estate; determine the enforceability of equitable restrictions on land; foreclose tax titles; and determine county, city, town, and district boundaries.
The 1930s saw an even greater expansion of the Land Court’s jurisdiction. In 1931, the court was given original jurisdiction concurrent with the Supreme Judicial Court (“SJC”) and the Superior Court over suits in equity to quiet or establish title to land and to remove clouds from title. In 1934, one of the most significant expansions of Land Court jurisdiction occurred: the court was given original jurisdiction concurrent with the SJC and the Superior Court over “[a]ll cases and matters of equity cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, except suits in equity for specific performance of contracts.” In 1934 and 1935, the court also was given exclusive original jurisdiction over petitions under M.G.L. c. 240, § 14A to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and original jurisdiction concurrent with the SJC and the Superior Court over suits in equity involving: redemption of tax titles; claims between joint trustees, co-executors and co-administrators; fraudulently conveyed real estate; and conveyances of real estate to municipalities, counties, and other subdivisions of the Commonwealth for specific purposes.
The Land Court’s jurisdiction remained relatively static for the next 40 years. In 1975, the legislature enacted the Zoning Act, M.G.L. c. 40A, and the court’s existing jurisdiction under M.G.L. c. 240, § 14A, was broadened, empowering it to hear (concurrently with the Superior Court) appeals from zoning boards of appeals and special permit granting authorities. Jurisdiction over appeals from planning board decisions under the subdivision control law was added in 1982.
In 1986, in response to confusion over the scope of the Land Court’s exclusive jurisdiction over the land registration system – particularly regarding other trial courts’ ability to decide claims involving registered land – the legislature added to the Land Court’s list of exclusive jurisdictional grants, “[c]omplaints affecting title to registered land . . . .” As will be discussed below, while this language clarified the issue to a degree, it left important questions unanswered.
In 2002, the Land Court’s jurisdiction was again significantly expanded. The court was given original jurisdiction concurrent with the Probate and Family Court (the “Probate Court”) over petitions for partition, and original jurisdiction concurrent with the SJC and the Superior Court over civil actions for trespass to real estate and actions for specific performance of contracts where any right, title, or interest in land is involved. The legislation also expanded the court’s jurisdiction over land-use disputes, granting the court jurisdiction to hear certiorari and mandamus actions under M.G.L. c. 249, §§ 4 and 5 where any right, title, or interest in land is involved “or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.” Two notable exceptions to this latter grant of jurisdiction are appeals from decisions of conservation commissions under local wetlands protection ordinances and bylaws and appeals from decisions of boards of health under Title 5 of the state sanitary code.
The most recent expansion of the Land Court’s jurisdiction occurred in 2006, when the legislature established a special “permit session” within the court. This special session provides more intensive case management and expedited handling of cases involving larger real estate developments, defined as those comprising 25 or more dwelling units, or 25,000 or more square feet of gross floor area, or both. In cases accepted into the permit session, the Land Court’s original jurisdiction (which is concurrent with the Superior Court) is even more expansive than its regular jurisdiction, encompassing virtually every type of local, regional, and state land-use permit, approval, order, and certificate. This sweeping jurisdiction includes, for example, appeals from decisions under the Boston zoning code, local wetlands protection ordinances and bylaws, and Title 5 of the state sanitary code – actions that are outside the Land Court’s regular jurisdiction.
It should be noted that in addition to the elements of the Land Court’s jurisdiction compiled in M.G.L. c. 185, § 1, and its permit session jurisdiction set forth in M.G.L. c. 185, § 3A, other statutes confer jurisdiction on the Land Court over other categories of cases. Two notable examples are M.G.L. c. 240, §§ 10A, which gives the Land Court jurisdiction concurrent with the Superior Court over actions to determine the scope and enforceability of restrictions on land, and St. 1943, c. 57, under which the court has jurisdiction concurrent with the Superior Court over suits in equity to determine, in connection with mortgage foreclosures, whether the mortgagor is a servicemember entitled to protection under the federal Servicemembers Civil Relief Act, 50 U.S.C.A. § 3901.
St. 1986, c. 463, § 1
Before 1986, there was uncertainty over the extent to which trial courts other than the Land Court could decide cases involving registered land. For example, a damages claim for breach of a purchase and sale agreement for a parcel of registered land does not affect the title to that land, and thus can be brought in Superior Court. However, a case involving the scope of an easement over registered land presents a more difficult question. In Deacy v. Berberian, 344 Mass. 321 (1962), the plaintiff filed suit in Superior Court seeking to enjoin the defendants from interfering with her use of a right of way over registered land. Based on the language of the original Land Court decree, the defendants claimed that the plaintiff’s use of the way was limited to passage “on foot and with teams,” and that passage by automobiles was precluded. 344 Mass. at 326. On appeal from a judgment for the plaintiff, the defendants argued that the Superior Court lacked jurisdiction to decide the issue. Id. at 328. In response the SJC stated, without further comment or analysis, “[w]e are of opinion [sic] that the purposes of the Land Court Act are not violated by the Superior Court interpreting the original decree so as to give effect to a common mode of transportation.” Id. Similarly, in Cesarone v. Femino, 340 Mass. 638 (1960), the plaintiff filed suit in Superior Court seeking a declaration that he was the owner of a parcel of registered land because his signature on a deed purportedly conveying that parcel was forged. 340 Mass. at 639. On appeal from a judgment for the plaintiff, the defendants argued that because it involved ownership of registered land, the plaintiff’s claim was within the Land Court’s exclusive jurisdiction. Id. The SJC disagreed, characterizing the claim as one based on general principles of equity, concluding, “it appears that either the Land Court or the Superior Court could take jurisdiction.” Id. at 639-640.
In an effort to clarify the scope of the Land Court’s exclusive jurisdiction over registered land and, by implication, the scope of other courts’ jurisdiction over cases involving registered land, in 1986 the legislature – as noted above – amended the court’s main jurisdictional statute, M.G.L. c. 185, § 1, to provide that the court has exclusive jurisdiction over “[c]omplaints affecting title to registered land . . . .” St. 1986, c. 463, § 1; M.G.L. c. 185, §1(a ½). However, it appears this amendment has failed in its mission: while the question whether a claim “affects title” to registered land seems like a simple one, in practice it has proved difficult for our appellate courts to answer in a consistent fashion.
Johnson v. Christ Apostle Church, Mt. Bethel
Such a question was at the center of the Appeals Court’s decision in Johnson v. Christ Apostle Church, Mt. Bethel, 96 Mass. App. Ct. 699 (2019). Johnson involved a dispute between the plaintiff homeowner (“Johnson”) and an adjacent church over Johnson’s use of a driveway on the church’s property that provided access to Johnson’s property. Both properties are registered land. 96 Mass. App. Ct. at 700. After years of peaceful coexistence, in 2013, the church installed a six-foot fence on the property line, which prevented Johnson from continuing to use the driveway. Id. Johnson filed suit in Superior Court asserting claims of negligence, adverse possession, and violation of the “spite fence” statute, M.G.L. c. 49, § 21, which deems certain fences a form of private nuisance. Id. After a trial solely on the nuisance claim, the court ruled for Johnson and ordered the church to install gates in its fence to restore Johnson’s access. Id. at 700-701.
On appeal, though neither side raised the issue, the Appeals Court vacated the judgment on the ground that it effectively granted Johnson “a permanent easement to use the church’s property.” Id. at 701. Citing M.G.L. c. 185, §1(a ½), the Appeals Court held, “[t]he Superior Court does not have jurisdiction to so encumber registered land.” Id. In support of its holding the Appeals Court cited Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997), which also involved use of a driveway on registered land. In Feinzig, the Superior Court had entered a judgment enjoining the defendant from interfering with the plaintiffs’ use of the defendant’s land. 42 Mass. App. Ct. at 115. The Appeals Court vacated that judgment, characterizing it as “a de facto encumbrance in the nature of an easement” that affected the defendant’s registered title, and therefore was within the Land Court’s exclusive jurisdiction and outside the jurisdiction of the Superior Court. Id. at 117. The Appeals Court observed, “while a Superior Court judge may order the discontinuance of a trespass on registered land, that judge may not fashion a judgment which has the effect of imposing an encumbrance on the registered title.” Id. at 115-116.
The Appeals Court’s Johnson decision omits any reference to O’Donnell v. O’Donnell, 74 Mass. App. Ct. 409 (2009), a decision that is hard to square with Johnson. In O’Donnell, the defendant mother was embroiled in litigation in the Probate Court with one of her sons over the validity of deeds to two parcels of registered land. 74 Mass. App. Ct. at 411. The mother claimed that those deeds had been procured by undue influence and fraud, and in breach of the son’s fiduciary duty. Id. The son unsuccessfully moved to dismiss the Probate Court action on the ground that it fell within the Land Court’s exclusive jurisdiction over registered land. Id. In response, the son and his brothers filed a new case in the Land Court seeking a declaration that the deeds were valid. Id. The Land Court dismissed that case on the ground of the prior pending Probate Court action, concluding that the judgment the mother sought in the Probate Court “would not of its own force purport to modify the registered title,” and therefore did not intrude on the Land Court’s exclusive jurisdiction over claims “affecting title to registered land.” Id. The Appeals Court affirmed, noting that both the Land Court and the Probate Court have general equity jurisdiction and can decide claims concerning registered land, “as long as the action desired would not have the effect of altering the registered title.” Id. at 412, citing Steele v. Kelley, 46 Mass. App. Ct. 712, 725 (1999). The Appeals Court added that, if a Probate Court judge were to find the deeds valid, “they still would represent no more than ‘a contract between the parties, and . . . evidence of authority to the recorder or assistant recorder [of the Land Court] to make registration.’ A separate act of registration would remain necessary to modify the title directly.” Id., quoting Steele, supra.
It is true that under our system of land registration, with a few narrow exceptions, no matter can formally affect a registered title unless it appears in the certificate of title or is noted on that certificate’s memorandum of encumbrances. M.G.L. c. 185, § 57 crisply states, “[t]he act of registration only shall be the operative act to convey or affect the land.” This is the principle on which O’Donnell rests. But if the Probate Court can enter a judgment determining the validity of a deed to registered land because that judgment itself does not affect the title, why is the Superior Court, in the exercise of its equity jurisdiction, precluded from entering a judgment ordering a defendant to install gates in its fence so that the plaintiff can use the defendant’s registered land (Johnson), or enjoining a defendant from interfering with the plaintiffs’ use of the defendant’s registered land (Feinzig)? After all, such judgments would not of their own force purport to modify the registered title. They would stand simply as adjudications of the parties’ respective rights, and “evidence of authority to the recorder or assistant recorder to make registration.” O’Donnell, supra at 412. Under the reasoning of O’Donnell, it appears, other courts would be free to adjudicate virtually any dispute involving registered land – not only claims concerning the validity of deeds, but claims involving easements and other lesser interests in registered land.
If there is a reasoned way to harmonize the Johnson/Feinzig view of the Land Court’s exclusive jurisdiction over registered land with the O’Donnell view, it is not readily apparent. The Johnson/Feinzig view is preferable in that it comports with the legislature’s presumed intent in 1986 to curb decisions like Deacy and Cesarone, supra, and reserve most disputes involving registered land for resolution by the Land Court, which is solely responsible for administering the registration system and has over a century of expertise in handling such disputes. The distinction that the Feinzig court drew between a claim of trespass on registered land, which does not affect title (at least where the trespasser claims no rights in the land), and a claim of a right to use registered land (whether direct or de facto), which does affect title, is sound and consistent with M.G.L. c. 185, §1(a ½). The O’Donnell view, in contrast, allows for no limiting principle and could lead to a significant erosion of the Land Court’s exclusive jurisdiction over registered land. The real estate bar will be grateful if a future appellate decision resolves the contradiction between these two approaches and finally provides the clarity that the legislature sought to achieve in 1986.
See HRS § 501-1.
 St. 1904, c. 448, § 1.
 St. 1906, c. 50, § 1.
 St. 1906, c. 344, § 1.
 St. 1915, c. 112, § 1.
 St. 1915, c. 237, § 3.
 St. 1919, c. 262, § 1.
 St. 1931, c. 387, § 1.
 St. 1934, c. 67, § 1.
 St. 1934, c. 263, § 1.
 St. 1935, c. 318, §§ 1-5.
 St. 1975, c. 808, § 3.
 St. 1982, c. 533, §§ 1 & 2.
 St. 1986, c. 463, § 1.
 St. 2002, c. 393.
 St. 2006, c. 205, § 15.
 M.G.L. c. 185, § 3A.
Donald R. Pinto, Jr. is a partner of Pierce Atwood LLP based in the firm’s Boston office. He has over 30 years of experience representing clients in all aspects of real estate and land-use litigation in the trial and appellate courts.
On January 1, 2016, a number of amendments to the Superior Court Rules went into effect. These amendments, which were approved by the Supreme Judicial Court, adopted new Rules 19, 30A, 31 and 33; amended Rules 7, 9A, 9C, 13, 17, 22, 29 and 30A; incorporated Standing Orders 1-06, 1-07 and 1-09 into new Rules; and deferred action on proposed new Rule 17A. This article highlights many of the significant amendments to the Rules. Readers are advised to review the Superior Court Rules in full to ensure that they are fully informed of all of the changes that affect their practices.
Rule 9A: Civil Motions. A noteworthy amendment to Rule 9A, at 9A(a)(3), modifies the procedure related to reply memoranda. Litigants are no longer required to seek leave of court to file a five-page reply. To file a longer reply, which is “strongly disfavored,” a party must seek leave of court in the manner outlined in the revised Rule 9A(a)(3); and under the unchanged portion of Rule 9A(a)(5), any longer reply memoranda “shall not exceed 10 pages.” Sur-replies continue to be “strongly disfavored,” and leave to file them must be sought from the court. The Rule 9A amendment does not expand the circumstances in which reply memoranda are permitted, which remains “[w]here the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum” and the reply is “limited to addressing such matters.” Furthermore, it does not alter the requirement in Rule 9A(b)(2) that the full Rule 9A package be filed within ten days of receipt of the opposition.
Rule 13: Hospital Records. Amended Rule 13 now requires that applications for orders for hospital records comply with Rule 9A if they are opposed. While previously a request could be filed after seven days notice to the opposing party, under the amended Rule 13 a party seeking an order for hospital records must now serve the adverse party with the request at least thirteen days before the order is needed, to allow for the possibility that the request will be opposed and that such opposition will be served by mail.
Rule 17: Recording Devices. Revised Rule 17 now requires recordings and transmissions of court proceedings to comply with Supreme Judicial Court Rule 1:19 (Electronic Access to Court), which prohibits photographs, recordings and transmissions in any courtroom, hearing room, office, chambers or lobby of a judge or magistrate without prior authorization of the judge or magistrate. The amendment to Rule 17 also eliminates the requirement that any court order authorizing the recording or reproduction of the proceedings be issued upon the condition that no such recordation may be used to impeach, discredit or otherwise affect the authenticity or accuracy of the record or the official transcript.
Rule 22: Money Paid Into Court. Rule 22 has been amended to increase the threshold at which money paid into Court must be deposited into an interest-bearing account from $500 to $5,000. The revised Rule 22 also contains a new, second paragraph which provides that, when money paid into court is unclaimed for 30 days “after the claim(s) of every party to the funds has been eliminated by default or court order,” the clerk is directed to schedule an assessment hearing after which the session judge may enter final judgment escheating the funds to the Commonwealth. However, judgment to this effect may not enter any sooner than three years after the funds are paid into Court. This amendment is consistent with M.G.L. c. 200A § 6, which provides that money paid into court is considered abandoned after three years or as soon after three years as all claims made for those funds have been disallowed or settled by the court.
Rule 29: Cover Sheet; Statement as to Damages. Rule 29(5) previously required Superior Court judges to transfer cases to the District Court if it appeared from the statement of damages in the civil action cover sheet that there was no reasonable likelihood that recovery would exceed the Superior Court threshold. It also permitted – but did not require – judges to transfer such cases if it appeared from any pre-trial event that the threshold would not be met. Amended Rule 29(5) is consistent with M.G.L. c. 212 §3A(b), and now limits the basis for such a determination to the statement of damages in the civil action cover sheet, as opposed to any information developed at a pre-trial proceeding. It also permits the parties to make written submissions and be heard at a hearing on the issue. Finally, Rule 29 no longer compels the transfer of such cases to the District Court; instead, it permits (but does not require) judges to dismiss such cases without prejudice.
Former Rule 30A/[New] Rule 9C(b). The provisions of former Rule 30A (Motions for Discovery Orders) have been renumbered without change as new Rule 9C(b) (the title of Rule 9C remains Settlement of Discovery Disputes).
[New] Rules 30A, 31 and 33. Three former Standing Orders were incorporated into the Rules. The verbatim texts of Standing Orders 1-06 (Continuances of Trial), 1-07 (Consolidation of [Civil] Superior Court Cases) and 1-09 (Written Discovery) were incorporated into the Superior Court Rules as new Rules 33, 31 and 30A, respectively, and those Standing Orders were repealed. This amendment streamlines the rules that govern Superior Court procedure as more of the procedures governing practice before the Superior Court can now be found in the same location, although lawyers should still check the Standing Orders.
The Rules in their Proposed form and the Supreme Judicial Court’s approval, may be viewed on the Judicial Branch’s website.
Heather V. Baer is a partner at Sally & Fitch LLP, where she focuses her practice on the representation of corporations and individuals in the areas of civil litigation, employment law and criminal defense, including white collar matters and government investigations.
Voice of the Judiciary
In 2009, the Superior Court celebrated “150 Years of the Rule of Law,” on the occasion of the 150th anniversary of the Court’s founding in 1859. We held educational programs, historic reenactments, and a symposium; we posted exhibits that continue to enliven jury assembly rooms and public spaces; and we published a book of essays reflecting on the experiences of some fifty members of the Court. We undertook these observances in recognition of our proud history of providing justice in the broad range of matters that come before us.
Today, while we remain fully committed to our original mission, we recognize that to serve effectively under current and future conditions, we must change. Change is everywhere around us, and we can be no exception.
The Trial Court Strategic Plan, adopted in 2013, describes a vision for a court system fitting the needs and circumstances of the 21st century, providing fair and expeditious resolution of all types of disputes, in safe and dignified settings, and making full use of technology and of a committed and well-trained workforce. The Strategic Plan sets nine goals to reach that vision, three of which warrant particular attention in the Superior Court: (1) to preserve and enhance the quality of judicial decision-making; (2) to deliver justice with effectiveness, efficiency, and consistency; and (3) to improve access.
Quality judicial decision-making is the most essential feature of any court. The Superior Court has a long history of quality, including in the most serious and challenging cases. That is part of why so many outstanding lawyers regularly seek appointment to the Superior Court.
The judges of the Superior Court, with support from the Trial Court Judicial Institute, provide an invaluable resource for each other in enhancing quality. We operate a comprehensive set of professional development programs for colleagues at all levels of experience, including a structured orientation and mentoring program for new judges, as well as formal and informal educational programs for all.
We are now placing particular emphasis on peer observation, in which judges observe each other in the courtroom and give confidential feedback. As of this writing, 65 of the 78 sitting judges of the Superior Court have arranged pairings for on-going observation. This reflects a significant cultural shift from the days when judges considered it rude to enter each other’s courtrooms. To facilitate this program, lawyers must also make a cultural shift: when you see a judge in the audience section of a courtroom, do not wonder whether the judge on the bench is in some sort of trouble; rather, recognize that two judicial colleagues are demonstrating their commitment to continuous improvement by engaging in peer observation.
Effective, efficient, and consistent delivery of justice also requires change.
The Superior Court has long appreciated the value of timeliness; we have had time standards for civil cases since 1988, and for criminal cases since 2004, and we have systematically monitored compliance with time standards statewide for more than ten years. Our initiative over the last decade to achieve firm trial dates produced strong results; it is now a rare event in the Superior Court that a case ready for trial is not reached.
These efforts have moved in the right direction, but are not enough; the needs of litigants today dictate a more innovative and targeted approach. In response to the initiative Chief Justice Gants announced last fall, our working group on civil litigation alternatives, which includes lawyers in various practice areas as well as judges, is working on devising a set of options to be available to lawyers and litigants to streamline the route to cost-efficient outcomes.
Efficiency and effectiveness require that we identify and adopt consistent best practices throughout the Court, so that lawyers and litigants know what to expect when they come into the Superior Court, in any county or session. Technology will assist us in this effort. By the end of September of this year, the entire Court will have completed conversion to the MassCourts case management system. MassCourts will improve processes directly, as well as facilitate data collection. Standard form notices and orders will issue automatically upon certain docket entries and the scheduling of certain events, and eventually will be transmitted to counsel electronically. Selected filings and court decisions will be scanned into the record, and will eventually be available for electronic access. The Attorney Portal will give lawyers access to docket entries, as well as to their own schedules of court events. Electronic filing will take longer to implement, but it is on the horizon.
Judicial assignments affect consistency of practices and rulings. As Chief Justice, I have the responsibility to make assignments based on the overall needs of the Court and the public, balancing the benefits and the costs of rotation. I have been conducting an on-going open discussion on this topic with judges, clerks, and lawyers over the past several months, and will continue the discussion, so as to inform the assignment process for next year and beyond.
Along with quality and efficiency, we need to improve access. The Superior Court has fewer self-represented litigants than other courts, but we have some, and the changes we make to demystify court processes will improve access for lawyers and their clients as well, without any sacrifice in quality. Changes planned or in progress include posting forms and instructions on our website; posting clear signs and schedules of events; providing information desks; and making civil dockets and appropriate case materials available to the public on-line.
We are also working to increase access to Alternative Dispute Resolution, utilizing the services of two public-spirited retired judges who have generously agreed to volunteer their time without charge: retired Judge Paul Chernoff conducts mediations in Middlesex County, and retired Judge John Cratsley provides ADR services in Suffolk County for litigants who would be unable to purchase such services in the private market. We are also working with county bar associations to strengthen long-standing conciliation programs.
To make the changes that are necessary to meet the needs of today’s litigants, we need the support and participation of the bar, both in advocating for adequate funding, and in providing views and expertise. I welcome input from the bar on any of the topics mentioned here, or any other topic that might advance our efforts to provide timely justice to the public.
Judith Fabricant has been Chief Justice of the Superior Court since December 1, 2014, having served as Associate Justice of the Superior Court starting in 1996. Before her appointment to the bench, she was Chief of the Government Bureau in the Office of the Attorney General of Massachusetts; an assistant district attorney for Essex County, Massachusetts, and Wake County, North Carolina; an associate with Hill & Barlow of Boston; and a law clerk to Judge Levin H. Campbell of the United States Court of Appeals.