Articles Posted in Easements

For many homeowners, an unexpected legal claim against their property is unsettling.  A Massachusetts real estate attorney can explain the options available and represent homeowners in the proceedings.  In an April 6, 2018 case, homeowners sought to prevent the town from using a path on their property to reach a local pond.  The homeowners argued that any easement held by the town to use the path had been abandoned.

The homeowners in the case owned property in a subdivision that was laid out on a plan recorded in 1914.  That plan, however, had virtually no relationship with how the area actually developed.  Many of the lots were combined into larger parcels before houses were built on them, while others were made a part of extensive conservation areas.  As a result, many of the roadways on the plan were never built or used, such as the path across the plaintiffs’ property.

The path at issue had never been used as a right of way to the pond by anyone, since the path was located on the plaintiffs’ front lawn, used as part of their driveway, and partially blocked by a stone wall.  Nevertheless, the town, which had always used other routes to reach the pond, contended it had the right to use the path for access to the pond.  The town’s claimed right of access was based solely on the 1914 subdivision plan.

Continue Reading ›

In Massachusetts, land use and ownership can be complicated after a parcel of property has passed through several owners over the course of many years.  In a March 3, 2018 case, the plaintiffs filed an action claiming that they had established a prescriptive easement to pass over part of the defendant’s land.  The matter was decided by the Massachusetts Land Court on summary judgment motions.

The plaintiffs in the case owned a parcel of land that abutted property owned by the defendants.  The defendants’ property consisted of two parcels.  Originally, the two parcels were a single piece of land owned by another individual.  The original owner divided the land into two parcels in 1995, conveying one parcel to the defendants and keeping the other parcel for himself.  The plaintiffs and the original owner engaged in litigation over the parcel he retained until 2012, when the house on the property was torn down.  Eventually, the property was foreclosed upon, and the defendants purchased that parcel from the original owner as well.  The plaintiffs then asserted a claim that they had established a prescriptive easement to pass over a portion of the defendants’ land.  Specifically, the disputed area consisted of a section of the circular driveway on the defendants’ property, located on the parcel that had initially been retained by the original owner.

In Massachusetts, to establish a prescriptive easement, the plaintiffs must prove open, notorious, adverse, and continuous or uninterrupted use of the defendant’s land for a period of at least 20 years.  The defendants in the case argued that the plaintiffs could not establish their prescriptive easement claim because their use of the defendants’ property was permissive, and otherwise it was merely intermittent or sporadic.

Continue Reading ›

In Massachusetts, beach access can be a significant feature of a residential real estate property.  In a March 5, 2018 case, the primary issue before the Appeals Court of Massachusetts concerned the ownership of, and access to, a beach situated near the parties’ homes.  The Land Court had ruled that the plaintiffs held easement rights to access and use the beach by a 1929 deed and by implication.  The defendants appealed the Land Court decision to the higher court.

An appurtenant easement allows for the use of a servient parcel of land in order to benefit a dominant parcel of land and the possessors of that land.  Appurtenant easements attach to and run with the land and consequently benefit subsequent possessors of that property as well.  If the appurtenant easement is expressly granted by deed, the deed must only reasonably identify the servient land, the dominant land, and the easement itself.

In the case, the 1929 deed expressly granted easement rights to the owner and subsequent owners.  It identified the easement as granting recreational use of the beach and shore located on the opposite end of the servient estate, currently owned by the defendants.  The defendants argued, however, that the plaintiffs were outside the record title chain and were not grantees of the easement.  The appeals court stated that appurtenant easements are not required to be recorded in the grantees’ title, and the successors of the dominant estate need not be specifically identified at the time of conveyance.  Instead, it is only required that the dominant and servient estates be reasonably ascertainable.  Since the plaintiffs possessed property comprising the dominant estate at the time of the May 1929 deed, therefore, they held easement rights to use the beach.

Continue Reading ›

It may seem unusual that, despite owning a parcel of property, some non-owners may have a limited right to use a portion of it.  One of the legal devices to convey such use is called an easement.  In a December 20, 2017 case, a plaintiff filed an action with the Massachusetts Land Court to remove alleged clouds on the title to his property.  In two of the counts in his complaint, the plaintiff sought to establish that the defendants did not have the right or benefit of an easement over his land.  The parties’ lots were part of a subdivision they purchased from the developer.

The parties filed cross-motions for summary judgment on the issues before the Land Court.  The plaintiff argued that the defendants had no right to use areas of his land that were designated as “cart paths” in the recorded deeds and subdivision plans.  The plaintiff also contended that the developer had no right to a private driveway easement that was referenced in the deeds as crossing his land.

The court first looked at the language of the deeds and other recorded documents to determine whether the defendants had rights over the cart paths on the plaintiff’s land.  While noting that the documents did depict the cart paths, the court explained that none of the deeds mentioned any rights that were granted or reserved over any of them. The court also pointed out that there were no facts to suggest that easements over the cart paths arose by implication, common scheme, or necessity.  Accordingly, the court ruled in favor of the plaintiff with respect to the cart paths, finding that the defendants did not have any right to use the cart paths on his land.

Continue Reading ›

Agreements concerning your property can be enforced by the court if they are not performed by the other party.  In a December 15, 2017 case, the Appeals Court of Massachusetts decided a dispute between the plaintiffs and a company that owned the  neighboring property.  The Massachusetts real estate case involved an agreement providing that the plaintiffs would grant an easement to the company in exchange for a section of the company’s land.  The plaintiffs subsequently brought suit to enforce the agreement.

The agreement at issue stated that the plaintiffs would convey an easement to the defendants and allow the defendants to construct and maintain a retaining wall along the rear of the plaintiffs’ property.  The plaintiffs also agreed to arrange for another neighbor to execute a similar easement.  In exchange, the agreement provided that the plaintiffs would purchase a portion of the defendants’ lot that would square off the plaintiffs’ L-shaped lot.  The land transfer, however, was conditioned on whether it would adversely affect drainage resulting from the defendants’ proposed expansion.

The defendants argued that the agreement failed to provide many essential aspects of the parties’ agreement, and therefore, enforcement was barred by the Statute of Frauds.  The court agreed that the agreement was poorly constructed, since it lacked a purchase price for the land, it did not precisely define the location of the parcel, it incorrectly identified the owner of the parcel, and it did not contain a closing date.  Furthermore, the description of the parcel that was included did not seem to be what the parties intended.  However, the court held that since the plaintiffs performed their obligations under the agreement, and they relied on the defendants’ promise to convey the parcel, the matter was outside the Statute of Frauds.

Continue Reading ›

Some parcels of land are subject to an easement, which allows people other than the owner to use the owner’s property for a particular purpose. If you believe you have an easement over land in Massachusetts, you can petition the land court for a declaratory judgment outlining your rights. In an August 9, 2017 Massachusetts property case, the plaintiffs sought a declaratory judgment in land court, arguing that they were the beneficiaries of two right of way easements across the neighboring landowner’s property.

In the case, the plaintiffs claimed they had the benefit of existing rights of way of record. The plaintiffs argued that the original deed to the defendant’s land conveying two parcels of land contained two easements, which they alleged actually existed as one continuous right of way. Since the plaintiffs owned the lands at both ends of the alleged continuous right of way, they contended that they were entitled to use and improve the right of way to access their land.

The land court first looked at the original deeds conveying the parties’ respective lots to determine whether an easement had been reserved. In Massachusetts, when an easement has been reserved in the grant of a parcel of land, the easement must be construed with reference to the deed and the circumstances when it was made. A reservation in a deed can only vest the grantor with a new right or interest. If the deed did attempt to vest a new right in a stranger to the deed, it would be void.

Continue Reading ›

Property law can seem complicated, but an experienced Massachusetts real estate attorney can guide you through the necessary legal proceedings.  In a December 8, 2017 case, a boundary line dispute came before the Massachusetts Land Court for a second time.  The location of the boundary line was first addressed in 2010 with an 11-day trial.  The land court entered an amended judgment in 2011, describing the area at issue and defining the boundary.  That decision was subsequently affirmed by the Court of Appeals.

The 2017 action arose after the parties realized that the 2011 judgment did not fully resolve the boundary dispute.  The 2011 judgment was based upon the parties’ agreement that all of the defendants’ property consisted of the land conveyed in an 1838 deed.  Unbeknownst to the plaintiff and the land court, nine months before the 2010 trial, the defendants acquired a trapezoidal parcel of land south of the property that, depending on the validity of the deed and location, might also abut the plaintiff’s property.  As a result, the adjudication of the parties’ common boundary line was potentially incomplete.

After learning of the deed, which was recorded long after the 2011 judgment, the plaintiff filed the current action to reopen the proceedings.  The limited issues were whether the grantor owned the trapezoidal parcel that was conveyed to the defendants, and if so, what was the location of the south boundary line between the parties’ properties.

Continue Reading ›

Confusion over boundary lines and property ownership can eventually lead to a legal action filed before a court.  Many Massachusetts adverse possession claims are argued before the Massachusetts Land Court, which shares jurisdiction with other courts over most real property cases in the state.  In a August 29, 2017 decision, the Land Court considered the plaintiffs’ claim that they had acquired portions of the defendant’s neighboring property, which consisted of a narrow strip of land bordering their lot and a concrete pad adjacent to that strip.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes, with clear proof, non-permissive use, which is actual, open and notorious, exclusive, and adverse for a period of 20 years.

The strip of land at issue in the case contained a pathway, retaining walls and low stone structures, a fence, and vegetation planted by the plaintiffs.  The Land Court found that the plaintiffs’ improvements and maintenance of the pathway and planting bed area were sufficient to constitute actual use for the purposes of adverse possession.  Specifically, the plaintiffs’ construction of a rock wall, retaining walls, and fence were permanent improvements to the property ordinarily associated with ownership.  The court also held that the fence and stone walls surrounding the strip were sufficient to show that the plaintiffs’ use of the area was open and notorious, thereby putting the record owner on notice of their claim to the area, as well as exclusive.  The court explained that the fence enclosed the cleared pathway and planting bed area as if it was an extension of the plaintiffs’ property.  Finally, evidence that the plaintiffs had used the strip of land since they had moved into their house in 1982 satisfied the 20-year required period of possession.  Accordingly, the court ruled that the plaintiffs had established their ownership of that narrow area by adverse possession.

Continue Reading ›

Boundary disputes and property ownership are often resolved in court proceedings, particularly when the party claiming possession of the land is not the title owner.  In an August 22, 2017 case, the Court of Appeals reviewed a Massachusetts title action between a landowner and the town.  The landowners brought the action against the town, seeking a declaration that they were the rightful title owners of a patch of land and way between two public roads.  The town filed a counterclaim, contending that it had a prescriptive easement.  After the Land Court ruled for the town, the landowners appealed to the higher court.

The area at issue consisted of a triangular parcel of land and an abutting way.  The way was paved but unnamed, and it was wide enough for two-way traffic to flow.  It provided a cut-through between two larger roads that merged at an intersection located at the tip of the triangular parcel of land.  The way was maintained by the town and had been used by the public for more than 20 years.  Although the public did not use the triangular parcel of land, the town had installed a drainage system in the triangle to channel water from the public roads, mowed the area, and removed dead trees.  The plaintiffs had not paid taxes on that area, nor had they been assessed by the town.

For a municipality in Massachusetts to acquire a prescriptive easement over land for a specific public purpose, it must demonstrate open, continuous, and notorious use for more than 20 years, as well as sufficient proof that it exercised dominion and control over the land through authorized acts of its employees to conduct or maintain a public use for the general benefit of its residents.

Continue Reading ›

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.

Continue Reading ›

Contact Information