Articles Posted in Easements

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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.

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If you believe that your property rights are being violated, you may be able to bring an action to stop or enjoin the actions of another individual or entity in court.  In an August 24, 2017 Massachusetts real estate case, the plaintiff filed an action claiming an easement over registered property owned by the town of Plymouth, and he sought to enjoin the town from interfering with his easement.  Although the plaintiff had a public right of access over the town’s property, he sought to enforce greater easement rights, which he argued the town violated by relocating the easement without his consent.riverside-1447563-640x480-300x225

The Land Court ruled that the plaintiff had an implied easement to cross the town’s land to the sea, but it was limited in scope.  Specifically, the court held that the easement entitled the plaintiff to enter and cross the town’s land only on the path designated by the town.  The plaintiff appealed the judgment to the Appeals Court of Massachusetts.

The plaintiff purchased his property in 2010.  His lot was originally part of a larger parcel divided into three lots in 1911.  None of the deeds to the three lots contained or reserved an express easement for the benefit of the plaintiff’s lot.  A paved way over one of the lots led to a public park on another lot and to the harbor.  The plaintiff purchased his lot for access to the harbor.  Due to a physical disability, the plaintiff’s only means to access the harbor is by using an amphibious vehicle from his lot to the boat landing on the other lot.  The plaintiff contended that the reconstruction of the public park and the construction of a boat ramp at the northern end of the park essentially relocated his easement, making it less convenient and more difficult to use.

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Property can be restricted in any number of ways through various legal means, such as a covenant or easement, often surviving a transfer of ownership.  In an August 11, 2017 Massachusetts real estate case, a plaintiff sought a declaratory judgment from the Land Court stating that she had an affirmative view easement over the property of the defendant.  The defendant sought a contrary declaration, arguing that the recorded documents did not support the plaintiff’s position.trees

The parties in the case lived in the same subdivision on neighboring lots.  The plaintiff claimed she had an easement pursuant to the subdivision’s Protective Covenant Agreement, which allowed her to compel other lot owners to trim their trees in order to protect her view of the sound.  She filed an action seeking to compel the defendant to top trees on the defendant’s property, asserting that the trees were blocking her view of the sound.

The Protective Covenant Agreement at issue provided that trees may be topped to preserve the view at the expense of the requesting lot owner and with the consent of the developer.  The Agreement also stated that subsequent plantings shall not be permitted to grow in such a manner as materially to obstruct the view of others.  Despite the fact that the Protective Covenant itself expired in 2002, the plaintiff argued that it created an easement that survived the expiration and remained valid.

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In some cases, legal action is required to protect a landowner’s rights to a part of their property used by others.  In a July 11, 2017 Massachusetts real estate case, the issue for the land court was whether the defendants and their guests had an appurtenant prescriptive easement for the unrestricted pedestrian use of a beach path located on the plaintiff’s property.beach

For decades, with the permission of the plaintiff and its predecessors in title, local residents have occasionally used the path to access the beach.  There is no public access to the path, and the local residents are alert to outsiders’ cars and chase them away.  Because of the parcel’s remote location, the hilly terrain, and the overgrowth surrounding it, it is impossible to notice anyone using the path unless the observer is on the path as well.

Opened seasonally since 1993, the defendants have operated a seven-guestroom inn and restaurant near the plaintiff’s parcel of land.  Despite having two other legitimate means of beach access, and without giving notice or seeking permission from the plaintiff, the defendants encouraged their guests to use the path on the plaintiff’s parcel to get to the beach.  On average, the guests used the path twice a day, and they were on the plaintiff’s parcel for only a minute or two as they walked to the beach.  None of the guests lingered on the property itself or left any sign of having been there.  Even if the guests were seen, moreover, they could not be distinguished from the local residents to whom the plaintiff had given permission to use the path.

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The Massachusetts Land Court recently considered a July 11, 2017 real estate case, which involved a 19th-century railroad easement in the plaintiffs’ property.  The easement at issue ran along the border of the plaintiffs’ property, and it was last used by the railroad in 1972.  The railroad’s interests in the easement had since passed to the Massachusetts Department of Conservation and Recreation (DCR). When the DCR announced that it wanted to build a walking and biking path on the railroad easement, the plaintiffs filed a quiet title action in land court. The plaintiffs in the case sought a court order stating that their property was unencumbered by any easement or other right of use or entry derived from a former railroad easement.railroad tracks

Historically, the 19th-century statutes giving railroads the power to take private lands for railroad lines didn’t give them a full ownership interest in what they took. Instead, a railroad received only a permanent and exclusive easement in the taken land for as long as the easement served the railroad’s chartered purposes. Consequently, once the railroad no longer has a use for the property, the land reverts back to the current owners, free of the easement. The plaintiffs sought a declaration that the entire interest in the easement reverted back to them.

DCR initially tried to invoke sovereign immunity, a doctrine that prevents a private party from suing the state and its agencies (i.e., DCR) in most circumstances. However, in Massachusetts, the courts have ruled that the try title statute impliedly waives immunity with respect to actions for quiet title. DCR then argued that the plaintiffs had to prove the federal government authorized abandonment of the easement.

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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.

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Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right.  The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants.  The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property.  The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.power line

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years.  The easement claimed is limited to the uses actually made of the section of property that meet those elements.  The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography.  Roots, stumps, and rocks had been left in the path.  At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it.  Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company.  By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

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The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.beach

In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

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In some situations, a well-traveled path through another’s personal property may give rise to an easement over time.  In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach.  The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.beach-1328647-640x480-300x225

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions.  When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road.  Thereafter, the same developer was hired to develop the plaintiff’s subdivision.  The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road.  In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way.  Despite the sign, the defendants regularly observed people using the road to access the beach.

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It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners.  Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways.  The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property.  The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession.  Both parties appealed that decision to the higher court for review.gate

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road.  After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911.  The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways.  In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively.  The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.

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