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Condo Unit Owners Dispute Right to Fence, Access Property in Massachusetts Real Estate Case

In a July 7, 2017 decision, the Massachusetts Land Court addressed a real estate dispute between condominium owners over their respective rights to access certain areas of the property. The parties were unit owners in a two-unit, residential condo. The plaintiffs in the case sought to prevent the defendants from installing a fence they claimed would prevent them from accessing and using land in which they have exclusive rights. The plaintiffs also requested recognition of an implied easement by necessity over a portion of the condominium common area, which had been designated for the exclusive use of the defendants’ unit. townhouses

The land court first looked at the site plan of the master deed to determine the rights of the parties. The plan provided that the exclusive rights area for the plaintiffs’ unit included a portion of the front yard, including the parking area for that unit, and continued along the side of the condo building, narrowing where it runs parallel to the defendants’ exclusive rights area directly behind the building, and opening to the rearmost portion of the plaintiffs’ exclusive rights area at the far southern end of the property. The plan depicted the defendants’ exclusive rights area as covering the remainder of the property, including the yard area directly behind the building.

When the defendants informed the plaintiffs of their intention to remove the existing stairs and install a fence around the backyard portion of their exclusive rights area, the plaintiffs objected, asserting that the changes would prevent them from accessing their own rear yard. After reviewing the master deed, the land court concluded that the defendants were within their rights under the deed to install the fence and remove the stairs located on their exclusive area. The land court also ruled that the defendants’ actions did not violate the plaintiffs’ rights under the deed because they did not infringe on the plaintiffs’ exclusive area nor the common areas of the property.

The plaintiffs also claimed they held an implied easement by necessity through the defendants’ exclusive rights area because without it, they could not access the rearmost portion of their own exclusive rights area. The land court, however, explained that ownership of a condominium unit is a hybrid interest in real estate, entitling the owner to both exclusive possession of his unit and an undivided interest as tenant in common with other unit owners in the common areas. The court went on to explain that an easement of necessity arises when a common grantor carves out what would otherwise be a landlocked parcel. It also requires the following elements:  (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked. As a result, the court concluded that the situation presented in the case did not meet the requisites for the creation of an easement by implication or necessity, and it denied the plaintiffs’ requested relief.

The Massachusetts land use attorneys at Pulgini & Norton can provide comprehensive legal guidance regarding your residential real estate matter. We can assist people with home closings, title actions, mortgages, re-financing, and more. Contact us by phone at (781) 843-2200 or online to schedule a consultation with one of our real estate lawyers.

More Blog Posts:

Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession, Massachusetts Real Estate Lawyer Blog, published March 7, 2016

Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute, Massachusetts Real Estate Lawyer Blog, published September 5, 2016

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