An easement is a property right that may, in some situations, be abandoned or extinguished by law. In a May 2, 2019 Massachusetts real estate case, the Land Court considered whether the defendant held an easement over an area abutting its property. The area in dispute was a “paper way”, as it was conveyed and described in the deed as a right of way but had never been constructed.
The defendant in the case owned a large apartment complex. The paper street was located between the plaintiff’s properties and, in the deed, continued through to the defendant’s property. In 1993, the prior owner of the apartment complex installed a six-foot fence, cutting off its own access to the paper street. Since then, the plaintiffs claimed to have used the paved portion of the paper street as a driveway and parking area, and the unpaved portion as a lawn, grilling area, and wooded area.
The plaintiffs filed an action against the defendant in Land Court, seeking a declaratory judgment that it owned the paper street in fee and that the defendant had no property rights over it. The Land Court addressed the issue of the defendant’s easement rights when the parties moved for summary judgment. The plaintiffs argued that any rights the defendant had in the paper street were extinguished by prescription or abandoned.