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Massachusetts Land Court Analyzes Covenant Access Rights, Denies Summary Judgment in Property Dispute

The Massachusetts land court recently considered a motion for summary judgment in a real estate dispute between two neighbors regarding access to a neighboring lot. In the case of McAdams v. FitzMaurice (Oct. 6, 2015), the primary issue was whether the defendants have a right appurtenant to the title to their property to pass over a neighboring, undeveloped seaside lot in order to access the beach on the other side. The record owners of the lot, who live across from it, brought an action seeking a declaration as to the parties’ rights to pass over the lot, injunctive relief prohibiting the defendants from crossing the lot, and money damages. The defendants responded with an assertion of their own right of passage to the lot.sea-1560616-640x480

The previous owners of the seaside lot, as well as the parties’ property, divided the land pursuant to a set of restrictive covenants. These covenants created conservation restrictions over the seaside lot for the purpose of preserving the premises as near to their natural state as possible. In addition, they expressly reserved a right for the grantors and successors in title “to pass and repass” over the seaside lot for the benefit of their property. The grantors’ property was eventually subdivided to become the current, respective properties of the plaintiffs and defendants. In their suit, the plaintiffs claim that this passage right is appurtenant only to their property, while the defendants contend that both owners have the same right to pass over the lot and benefit from it.

Massachusetts courts have previously held that the “right to pass and repass” is not an exception to the restriction or a reservation of rights, but rather a recognition of the continuing right of the landowner to pass over his or her property. Therefore, although not expressed as an easement, it is in the nature of an easement. The meaning of rights granted pursuant to a conveyance of property rights is derived from the presumed intent of the grantor, which is to be ascertained from the words of the written instrument, and when necessary, construed in the light of the attendant circumstances. In the case of an easement by grant, as here, the language establishing that easement controls the interpretation as long as it is clear and explicit, and without ambiguity.

In McAdams, the land court found that the language of the covenants was ambiguous, due to the fact that the defendants appeared to have the right to maintain pipes and trim trees on the seaside lot, but, illogically, no explicit corresponding right to pass over the lot. In light of the ambiguity, the court may consider attendant circumstances and facts known to the grantors of the restrictive covenants at the time of execution, including whether or not the dwelling on the defendants’ property existed at the time the restrictive covenants were executed. The court also found the plaintiffs’ allegation that the defendants’ right to pass over the seaside lot would overburden the right of passage, thus undermining the goals of the restrictive covenant, was a legitimate argument. Based on these concerns, the court ultimately held that further evidence would be necessary in order to determine the scope of the rights reserved to the grantors of the restrictive covenants, and it denied the plaintiff’s motion for summary judgment.

If you are involved in a property dispute or land ownership issue, an experienced real estate attorney can explain your rights and options under the law. The Massachusetts attorneys at Pulgini & Norton offer diligent and competent legal representation to clients in a variety of real estate matters, including home sales, mortgages, closings, refinancing, and others. To discuss your real estate needs with one of our attorneys, call (781) 843-2200, or contact us online.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Land Court Defines “Public Way” in Property Division Dispute, Massachusetts Real Estate Lawyer Blog, published September 11, 2015

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