The actions of developers and other businesses may have lasting effects on the properties of residential homeowners. When the change is unwanted or unwarranted, homeowners may be able to take legal steps to protect their property rights. In a September 7, 2018 Massachusetts real estate case, the homeowners succeeded in opposing a property developer’s plan to use a right of way easement on their property.
The developer in the case had applied to the local zoning authority for approval of a proposed plan to build an affordable housing complex with thirty-two dwelling units. Seeking to demonstrate that there was sufficient access to the proposed development, the developer added to its proposed plan an additional access road traveling from the public road to the development. The additional access road proposed by the developer, however, required use of a right of way through property owned by the plaintiffs. The plaintiffs filed an action in the Massachusetts Land Court to protect their rights in the right of way, arguing that the developer had no rights to cross their land to access the proposed development from the public road.
The developer first argued that it had a granted easement over the right of way because it was shown on the recorded plan of the plaintiff’s subdivision. The court disagreed, holding that the mere depiction of a way on an approved subdivision, without more, does not operate as a grant of an easement.