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Real Estate Litigation

The Goulston & Storrs Real Estate Litigation group is one of the largest and most experienced in New England. We counsel private owners, developers, REITs, academic hospitals, universities, commercial brokerage and management firms, lenders and title insurers with respect to all manner of retail, office, industrial, residential and mixed use properties, both large and small, in communities at all points on the continuum from urban centers to those just grappling with major development for the first time. Our clients also include non-profit developers and governmental agencies.

We provide pre-litigation counseling and case evaluation and, at the core of our practice, we advocate and conduct litigation before state and federal courts and regulatory or administrative bodies. We understand the relationships among the various pieces of litigation that a major real estate project may generate and coordinate them within a coherent strategy with overall goals in mind. When resolution in court is appropriate, we take cases to trial and defend the judgments we win at the appellate level. Our attorneys are experienced and adept in negotiating and crafting the often intricate multiparty settlements that are required to resolve real estate disputes out of court. Our extensive experience in real estate matters give us a knowledge of the substantive law and facility with procedural intricacies that is second to none and allows us to effectively and efficiently achieve our clients' objectives. Attorneys in our group have deep trial and appellate experience in the full range of real estate litigation, including disputes involving:

  • Affordable and Multi-Family Housing
  • Alternative Energy Source Projects
  • Americans With Disabilities Act, Civil Rights and Other Access and Accessibility Disputes
  • Construction
  • Eminent Domain
  • Financing
  • HUD Programs
  • Landlord/Tenant Issues
  • Leases, Purchase and Sale Agreements and Other Real Estate Interests
  • Property and Casualty Insurance
  • Permitting and Development
  • Real Estate Partnerships and Joint Ventures
  • Tax Abatement and Change of Special Tax Status
  • Title Disputes and Title Insurance
  • Wetlands and Environmental Issues

Representative Projects and Transactions

Affordable and Multifamily Housing

  • In a case of first impression, obtained summary dismissal of neighbors appeal of comprehensive permit after favorable changes to the permit were made as a result of developer's appeal, where statute provides distinct routes of appeal, and successfully defended that judgment at the Supreme Judicial Court in Taylor v. Lexington, 451 Mass. 270 (2008).
  • In a case resolving differences among lower courts regarding the point at which a community's satisfaction of its minimum affordable housing obligation is to be determined, obtained summary judgment in favor of the developer's position and successfully defended that judgment at the Supreme Judicial Court in Taylor v. HAC, 451 Mass 149 (2008), identified by Massachusetts Lawyers' Weekly as one of the most important decisions of 2008.
  • Representation of a developer of affordable housing in obtaining dismissal of neighbors' challenge to permit in court, based on outcome of developer's challenge to density limitations in the permit in administrative proceedings.
  • Representation of national developer of multifamily housing in simultaneous court and administrative appeals of permit issued under the Massachusetts comprehensive permit law that provides relief from local regulation for qualifying projects with an affordable component.
  • Successfully defending national multifamily housing developer at trial regarding challenge to permits obtained for suburban apartment development.
  • In a case of first impression, obtained summary judgment upholding comprehensive permit issued to developer of affordable housing project and successfully defended that judgment on appeal in Standerwick, et al. v. Zoning Board of Appeals of Andover, et al., 447 Mass. 20 (2006), identified by Massachusetts Lawyers' Weekly as one of the ten most significant decisions made by the Supreme Judicial Court in 2006.

Alternative Energy Source Projects

  • Representation of the developer of a proposed wind-turbine farm in Nantucket Sound in two lawsuits challenging the developer's right to proceed.

Eminent Domain

  • Representation of the Massachusetts Bay Transportation Authority in several eminent domain cases arising out of the MBTA's taking of property for a new commuter rail line.
  • Representation of the Boston Redevelopment Authority in connection with the BRA's acquisition by eminent domain of 60 acres of land in South Boston for the site of the new Boston Convention and Exhibition Center; tried several cases where the BRA's total exposure exceeded $100 million; obtained jury verdicts totaling less than $24 million; saved the client tens of millions of dollars.
  • Successfully defended the Town of Edgartown, winning a favorable jury verdict.
  • Pre-litigation consultation with a state agency regarding eminent domain issues related to the construction of a new courthouse.

Environmental

  • Representation of office, residential, marine, power and hospitality sector projects in adjudicatory proceedings before the Massachusetts Department of Environmental Protection.
  • Representation of real estate owners and developers in an array of cases involving wetland appeals, MEPA Appeals, Chapter 91 Appeals and Conservation Commission appeals.
  • Representation of numerous current and former owners and operators in private cost recovery actions under CERCLA and state environmental statutes seeking reimbursement for costs incurred in remediating hazardous materials.
  • Representation of real estate owners, developers and individual property owners in investigations and enforcement actions brought by the Massachusetts Department of Environmental Protection.

Land Use, Permitting and Development

  • Represented a national developer of multi-family housing who was denied a permit to construct a 250-unit multi-family development. After a 4-day administrative hearing at the State Housing Appeals Committee, the Committee overturned the denial and ordered that the municipality grant the permit. 
  • Representation of national shopping center REIT in multiple lawsuits filed by adjacent town and property owners to expansion of largest shopping center in Massachusetts.
  • Representation of retail developer in court challenges to special permits and site plan approval, litigation challenging a rezoning of the site, and administrative proceedings seeking review of wetlands approval, all of which were dismissed with no changes to the project after extensive discovery into sources of funding of the project's opposition.
  • Representation of a national developer in seven cases in several courts and two administrative agencies, in which we obtained judgment overturning the denial of a special permit.
  • Representation of developer overturning the denial of a special permit by an early summary judgment motion based on narrowly crafted and focused discovery requests.
  • Successfully represented landowner's association at trial and on appeal in enforcement of restrictive design covenants against owner of 20 acre ocean-front property on Cape Cod.
  • Defended the permitting and licensure of a bulk fuel storage facility, including assembly of a team of experts to support the owner's interests in state and local regulatory proceedings.
  • Representation of a developer in a series of cases helping to shape the law governing review of site plan decisions.
  • Representation of "big box" retailers in site plan and special permit litigation at trial and on appeal in connection with fueling station development program in New England and other eastern states.
  • Representation of national telecommunications provider in varied litigation arising from permitting of tower sites.
  • Obtaining summary judgment in favor of developer declaring that municipal zoning ordinance violated state enabling act and was invalid as applied to developer's property.
  • Obtained summary judgment in a challenge to zoning amendments and other zoning relief issued to developer of large mixed-use commercial retail development which judgment was upheld on appeal in Brookins, et al. v. Zoning Commission of Boston, et al., 66 Mass. App. Ct. 1116 (2006), further appellate review denied, 447 Mass. 1107, Petition for Certiorari denied by the United States Supreme Court.
  • Obtained summary judgment affirming municipal zoning amendment related to development of a mixed-use retail/office project, upheld on appeal, Flaherty v. Massachusetts Turnpike Authority, et al., 63 Mass. App. Ct. 1118 (2005).
  • Representation of large supermarket company in several zoning/permitting appeals, including recent favorable decision after trial in PB & C Series, LLC v. Stop & Shop Supermarket Co., et al., Land Court Misc. Case No. 260800, and successfully defended the decision in the Appeals Court at 65 Mass. App. Ct. 1103 (2005).
  • Representation of appellee successfully enforcing requirements for timely appeal from special permit granted to client. BJ's Wholesale Club, Inc. v City Council of Fitchburg, 52 Mass. App. Ct. 585 (2001).
  • Representation of developer in land use and permitting litigation defeating challenge to permit at summary judgment level. Carol Y. Bingham, Trustee v City Council of Fitchburg, 52 Mass. App. Ct. 566 (2001).
  • Successful defense of Edgartown's three acre minimum area zoning regulation. Johnson v. Town of Edgartown, 425 Mass. 117 (1997).
  • Representation of developer of major Boston high-rise known as International Place from challenge by a citizens' group. Boston Preservation Alliance, Inc. v. Secretary of Environmental Affairs, 396 Mass. 489 (1985).

Leases, Purchase and Sale Agreements and Other Real Estate Interests

  • Successful representation of the developer of the largest office complex in Boston in a $300+ million dispute with its lender.
  • Won a complete defense verdict for a real estate development company and several of its principals in a two-week jury trial of claims for breach of contract, fraud, intentional interference with contractual relations, and unfair and deceptive business practices filed by tenant in various shopping centers owned and managed by developer.
  • Obtained summary judgment in favor of academic hospital physicians group in case of first impression that lease for new facility for clinical treatment program for autistic children was void as against public policy because landlord failed to include language in the lease disclosing that landlord had entered into an Activity and Use Limitation in connection with the remediation of hazardous materials at the site.
  • Obtained a judgment in favor of national shopping center REIT in the amount of $1.2 million in a dispute about the enforceability of a liquidated damages clause in a commercial lease.
  • Successfully obtained summary judgment in favor of national REIT that department store had failed to exercise its option to extend lease for 45 years.
  • Won at trial and on appeal defending the owner of Martha's Vineyard property against an action seeking specific performance of a purchase and sale agreement.
  • Successfully defended national real estate fund and its local partner in action by national record store retailer that included the conversion of mixed use building to a commercial condominium did not violate retailer's prior lease.
  • Successfully represented purchaser of luxury hotel on Nantucket in dispute with another prospective purchaser regarding exercise of right of first refusal.
  • Won a judgment at trial in a commercial landlord/tenant case and successfully defended that judgment on appeal. USS Industrial Park Associates, LLC v. Mid-States Packaging and Distribution, Inc., 65 Mass. App. Ct. 1109 (2005).
  • Representation of large office tower tenant in winning right to sublease over objection of landlord. National Union Fire Insurance Company v. Rose, 53 Mass. App. Ct. 910 (2002).

Tax Abatement

  • Representation of large commercial property owners in abatement proceedings resulting in substantial tax abatements for clients.


Title Disputes

  • Representation of national title insurance company as regional counsel for coverage investigation and analysis in matters arising out of so-called mortgage foreclosure schemes investigated and prosecuted by the Massachusetts Attorney General's Office.
  • Successfully defended developer of residential subdivision against claimed violations of subdivision covenants and restrictions.
  • Obtained judgments in favor of commercial and residential property owners against claims of derelict fee, adverse possession and prescriptive easement rights.
  • Defended property owners and lenders against claims of forged deeds and mortgage documents.
  • Representation of lenders in federal Multidistrict Litigation class action proceedings involving alleged violations of the Truth-in-Lending Act and the Fair Credit Reporting Act.
  • Successfully represented corporation in interlocutory appeal of a commercial property dispute involving the expedited dissolution of an unjustified lis pendens in a case of first impression under G.L. 184, ¤ 15, as amended in 2002. Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73 (2005).

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