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How a Real Estate Attorney Can Ease Your Worries About Easements

A prospective purchaser of property may discover that there is an easement giving a non-owner, whether a person, company, or public entity, the right to use a portion of the property. An easement is usually a passageway between two properties, possibly for a driveway when one property does not have direct access to a street, or for power or telephone lines.

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An easement may be negotiated between neighbors regarding their adjacent properties, during the course of their ownership. The issue may then be raised or contested by subsequent owners of what is called the servient estate, the property on which the easement exists.

The existence of an easement may be shown in the property deed, or in a subdivision plan, or both. Verbal agreements are not favored by the courts, but if they are well verified, they may stand up, if there is additional evidence that both property owners intended to create the easement.

In a case decided in August 2014 by the Massachusetts Court of Appeals, John W. Perillo et al. vs. Brenda Knight, No. 13-P-1362, the court reviewed a decision by the Land Court which had decided a dispute between neighbors by finding the existence of an easement. Adjacent property owners, prior to the plaintiff’s purchase, had negotiated an easement for a 50-foot wide driveway over the plaintiff’s property in Mansfield. The easement was recorded in the subdivision plan and this recording was referenced in the deed to the property.

Plaintiff objected to the easement on the grounds that there was no explicit grant of an easement in the deed, only the reference to the subdivision plan. In addition the plaintiff argued that the property owners who held the easement had abandoned it by not using it.

The Court of Appeals found that when the subdivision plan was referred to in the deed, it became part of the contract between the neighbors, and binding on successive owners of the property.

The Court also looked to the parties’ actions as well as written records, as evidence of their intent. The Court concluded that not only did the parties to the original easement agreement put their intentions in writing, they showed them by taking action on that understanding.

The landowners who had negotiated to obtain the use of the driveway through their neighbors’ property had given up the right to another narrower driveway, in order to get the wider one. They planned to subdivide their property in the future, so they relinquished the narrower driveway to obtain the 50-foot wide driveway because the 50-foot width was the minimum required for a town road. The Court found that this action was significant evidence of the parties’ intent.

The Court also rejected the plaintiff’s argument that the neighbors had given up the right to the driveway by not using it. The Court ruled that merely not using the easement, without doing anything that would permanently eliminate it, was not abandonment, referring to another case where the property owners had built a mailbox and planted trees in the driveway as not being abandonment of the easement. None of those were permanent, according to the Court. Therefore they showed no intent by the owner of the easement to abandon it.

It is very important to know all the details of any existing easements when purchasing a home or property. Likewise, a seller should disclose any easements to the prospective buyer, either directly or through the seller’s attorney. This is also a question that the buyer’s real estate attorney should ask, whether or not the seller’s attorney raises the subject. The existence of an easement can be a topic for negotiation of the purchase price, especially if an easement directly or indirectly affects the way the new owner can use the property. Easements should be part of the buyer’s and the buyer’s attorney’s checklist during the home purchase process.

At Pulgini & Norton, we are familiar with any issues that may arise during the process of purchasing or selling a home or property. As experienced Massachusetts real estate attorneys, we can help you with all of your real estate legal needs. If you have a question about an easement or any aspect of a home purchase or sale, give us a call today at 781-843-2200 or contact our office online, and we can help legally clear the way for you.

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Living off the Grid and Real Estate Law, Massachusetts Real Estate Lawyer Blog, May 14, 2014

How a Real Estate Lawyer Can Help You With Zoning Restrictions, Massachusetts Real Estate Lawyer Blog, April 9, 2014

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