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Passageway Rights of Neighboring Property Owners Defined by Appeals Court of Massachusetts

Sharing an alleyway with other property owners can be frustrating, especially when their right to use the alley is in question.  In a September 19, 2017 Massachusetts real estate case, the appeals court considered the nature and extent of the defendants’ right to use a 10-foot-wide passageway running between their property and the property of the plaintiffs.  The defendants in the case operated a small grocery and wine store in Boston, while the plaintiffs owned the property across the passageway.  The plaintiffs brought an action seeking injunctive relief from the defendants’ use of the passageway.alley

Prior to 1947, the previous owners of the property owned to the center of the passageway abutting their respective properties, and they enjoyed a right of passage, in common with others, over the rest of the passageway.  In 1947, the previous owners of the properties had entered into an agreement that restricted current and future owners of the defendants’ property to travel on foot and with hand carts through the passageway and expressly excluded the right to place garbage in the passageway or use the passageway for any purposes other than those provided.  Owners of the plaintiffs’ property were allowed to use the passageway in any manner for which a street is commonly used.

The primary issue for the court was whether the provisions of the 1947 agreement constituted a restriction or an easement.  The legal construct of a restriction and an easement is similar, but the distinction is outcome-determinative.  A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways.  An easement, on the other hand, creates a non-possessory right to enter and use land in the possession of another party and obligates the possessor not to interfere with the uses authorized by the easement.  While restrictions become unenforceable with the passage of time, easements do not.

The court concluded that, since the effect of the 1947 agreement was to restrict the defendants’ existing rights over the entire passageway, it constituted a restriction.  The court explained that the 1947 agreement gave the defendants’ predecessors nothing that they did not already have.  Instead, they had enjoyed an unrestricted right over the passageway, in common with others, and the 1947 agreement served to restrict that right.  As a result, under Massachusetts law, the restriction was terminated after 50 years without a renewal.  Both parties, therefore, had the right to use the passageway, although their respective uses may not unreasonably interfere with the others’ right of passage.

The Massachusetts real estate attorneys at Pulgini & Norton can advise homeowners on all matters relating to their residential property.  We handle land use and zoning disputes, purchase and sale transactions, loan financing options, title actions, and more.  To further your objectives with one of our experienced property lawyers, call Pulgini & Norton at (781) 990-2200 or contact us online and schedule your appointment.

More Blog Posts:

Massachusetts Land Court Explains Requirements for Acquiring Wooded Land by Adverse Possession, Massachusetts Real Estate Lawyer Blog, published April 17, 2017

Massachusetts Land Court Rules on Issues of Adverse Possession and Prescriptive Easement, Massachusetts Real Estate Lawyer Blog, published December 15, 2015

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