Articles Posted in Easements

If someone has interfered with your easement or property rights, you may have legal recourse.  In a September 19, 2019 Massachusetts real estate case, the plaintiffs filed an action against their neighbors in Land Court claiming that their property had the benefit of an easement over their neighbors’ property.  Specifically, the plaintiffs sought a declaratory judgment from the court that they had the right to use an existing driveway on the defendants’ property to access their own property, and a restraining order enjoining the defendants from blocking the plaintiff’s access to their property.

The plaintiffs in the case asserted that their right to use the defendant’s driveway was based on a recorded easement, a prescriptive easement, and/or an easement by necessity.  With regard to the plaintiffs’ claim to a recorded easement, the court held that the deed presented in support of their argument was ineffective to create an express easement.  The court explained that, although both parties’ properties were held under common ownership originally, at the time the grantor purported to convey the right of way at issue, he did not own the defendant’s property.  As one cannot convey a property right that one does not own, the court ruled that no express easement was created by deed.

The court next addressed the plaintiffs’ claimed easement by necessity.  In Massachusetts, an easement by necessity 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.  The court noted that the deed severing the parties’ properties granted an express easement that provided access to the plaintiff’s property, although one was never constructed.  Nevertheless, the court held that the plaintiffs did not present any additional evidence that access over the defendants’ driveway was reasonably necessary.

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A homeowner may file an action to quiet title in order to claim their ownership rights of the property in question.  In a September 4, 2019 Massachusetts property case, the plaintiffs brought an action in Land Court claiming ownership of a way that lined one side of their property.  The plaintiffs also sought a judgment that the defendant, a neighboring property owner, had no rights in or over the way.

The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue.  When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property.  The fence was installed by the previous owner of the defendant’s property.  It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way.  In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.

Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise.  The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way.  The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.

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The public generally enjoys an easement of travel over all public roads.  In rare circumstances, the public may also have a right to use a private way.  However, such a right does not include the broad rights of a public road.  In an August 21, 2019 Massachusetts real estate case, the plaintiffs brought an action in Land Court to establish a right of access over the defendants’ private roads.

The plaintiffs in the case owned two landlocked parcels of land, with no means to reach it from a public way or public road.  Rather, the only available access to the plaintiffs’ parcels was by using two private ways, which were located on the defendants’ properties.  In their Land Court action, the plaintiffs asserted that they had the benefit of a public right of travel over the defendants’ two private roads.

In Massachusetts, a private way may become a public way by prescription.  There also can be private ways, not dedicated to public use, that are nevertheless open to public use by license or permission of the owner.  Generally, establishing that a private way has become public is more difficult to prove than showing that a private way is open to the public.  The rights allowed in a private way open to the public, however, are much more limited than the easement rights afforded to the public in a public way and a public way by prescription.

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The issue of Massachusetts real estate easement rights commonly arises in situations involving beach access and pathways to the shore.  This issue was the source of the dispute in an August 16, 2019 case decided by the Massachusetts Land Court on summary judgment.  The question for the court was whether the defendants had an easement in a way referred to as the “shoreway,” which abutted the plaintiffs’ registered property.

The parties’ properties were located along a bay in Massachusetts.  The properties were once part of a larger tract assembled in 1950, which had been registered on a county registry district certificate and depicted on a Land Court plan.  The lands comprising the larger tract, however, had been registered long before 1950 in various certificates.  Many of these certificates mentioned the roads within the registered parcels, and provided that the streets and ways shown on the plan were subject to the rights of all persons lawfully entitled to use them.

When the larger tract was divided in 1950 and thereafter, the developer registered several subdivision plans that included inland lots and oceanfront lots.  The plans also depicted “shoreways,” which extended a short distance from the private interior subdivision roads to the bay.  Both the inland lots and the oceanfront lots referred to easements providing a right of way in common with others over the private ways and shoreways.

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Massachusetts easement rights are often a source of contention between neighboring property owners.  If a property owner files an action for a declaratory judgment, the court may issue a decision setting forth the easement rights of the respective property owners, as in a July 26, 2019 case.

The plaintiff in the case brought an action against her neighbor, seeking a declaration that her neighbor had no legal right to the continued use of a sewerage pumping station on her property, and seeking injunctive relief and damages.  After the lower court granted the plaintiff’s motion for summary judgment, the defendant filed an appeal with the Appeals Court of Massachusetts.

At the time the plaintiff had purchased her lot, she was aware that the prior owner of the defendant’s lot was using the pump station on her lot to dispute of sewage.  The local town, however, had been paying the costs associated with the pump station since its completion in 2001.  In 2011, the town sought to recoup these costs from the plaintiff.  Thereafter, a disagreement arose between the parties regarding the defendant’s contribution towards the expenses of the pump station.  This prompted the plaintiff to file an action seeking a declaration that the defendant had no right to use the pump station.

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Local zoning regulations generally promote the safety and general welfare of the community, while also encouraging the most appropriate use of the land.  In a July 11, 2019 Massachusetts real estate case, the plaintiffs sought to overturn a decision by the local planning board that waived the requirements of a zoning regulation.

The defendants in the case had applied for approval of a two-lot, two-residence subdivision.  They also proposed to extend the right-of-way running over the plaintiffs’ lot.  Under the applicable zoning regulation, all owners of all land included in the subdivision proposal are required to join in the application.  Due to the plaintiffs’ ownership of the right-of-way, which was included in the defendants’ subdivision plan, the regulation required the plaintiffs’ signature.  However, the local planning board waived this requirement and approved the defendants’ application.  The plaintiffs subsequently appealed the board’s decision to the Land Court.

On appeal, the Land Court concluded, as an initial matter, that the plaintiffs did not have standing to bring the appeal.  Although the plaintiffs were afforded the presumption of being aggrieved, as their property abutted the defendants’ land, they did not establish any specific and substantiated injury that would result from the board’s decision.  Nevertheless, the court went on to consider the issue of whether the applicant waiver was improper.

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If another person interferes with your easement rights or over-burdens it with an impermissible use, you may have legal recourse to protect your property interests.  In some situations, the court may issue a preliminary injunction to keep the status quo or restrain certain conduct before a final decision has been reached, as in a May 24, 2019 Massachusetts real estate case.  The plaintiffs in the case filed a lawsuit claiming an easement to use a beach area.  The plaintiffs then requested a preliminary injunction from the court to enforce those rights.  In turn, the defendants sought a preliminary injunction against the plaintiffs to cease many of their activities the beach, alleging that such uses were destructive.

The plaintiffs claimed that they had the right to deploy and maintain a dock, use a boat ramp, and park vehicles and trailers on the beach.  In their motion for a preliminary injunction, they claimed that the defendants had interfered with those rights.  The defendants argued that any easements rights of the plaintiff were based on the permissive use allowed by the previous owner of the property, and such use had been revoked after his death.  The defendants further alleged that the plaintiffs had overburdened the easement and that their activities constituted a nuisance and trespass on the beach.  They sought to prevent the plaintiffs from installing a dock, launching boats, parking and storing trailers, boats, and vehicles, planting invasive species, leaving trash, having large parties and drinking alcohol on the beach, and lighting fireworks.

In Massachusetts, the court may issue a preliminary injunction only if the moving party demonstrates the following: (1) a likelihood of success on the merits, (2) that he or she faces a substantial risk of irreparable harm if the injunction is not issued, and (3) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the non-moving party.

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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.

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An easement allows a person the legal right to use another person’s land for a specific and limited purpose.  If someone interferes with that right, the easement holder may request that the court to issue an injunction prohibiting such interference.  In an April 5, 2019 Massachusetts real estate case, the plaintiff filed an action against her neighbors after they fenced in a private way, thus preventing her from using it.

The private way at issue was located on the borders of the plaintiff’s land and the defendants’ land.  The first deed to the plaintiff’s property, recorded in 1901, granted the right to the owners to pass over the private way, located on the defendants’ property.  After purchasing their property in 2017, the defendants informed the plaintiff that they intended to put up a fence to obstruct the plaintiff’s use of the way.  Over the plaintiff’s objection they installed the fence.

The plaintiff filed a Complaint in the Massachusetts Land Court, asserting claims of ownership by adverse possession and interference with easement rights.  The plaintiff then moved the court for a preliminary injunction requiring the defendants to remove the fence and stop interfering with her use of the way.

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Sharing an access road or right of way with other property owners occasionally causes conflict, as in a recent Massachusetts real estate action.  The parties in the case owned adjacent lots in a residential subdivision that bordered a lake.  In a January 17, 2019 decision, the Land Court was presented with the question of whether and to what extent the parties had property rights in, or ownership of, a right of way easement leading to the lake.

The defendant in the case owned a lot in the same subdivision as the plaintiffs.  He used the right of way regularly to access the lake, and had made improvements to it, such as re-grading a sloped section and installing a portable, metal dock.  The co-plaintiffs filed the action seeking to clear title and for a declaratory judgment with respect to their ownership rights in the way.  They presented multiple, alternative theories to the court to establish their claims.

Ultimately, the plaintiffs prevailed on their claim that they owned the right of way up to the centerline, by operation of the Derelict Fee Statute.  Pursuant to the Massachusetts Derelict Fee Statute, a deed that conveys a piece of land abutting a way includes ownership of the way up to the centerline, unless otherwise expressed in the deed.  If the property on the other side of the way is conveyed as well, the full width of the way is conveyed.

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