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.
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.