Massachusetts Land Court Discusses Permissive Use in Easement Dispute over Shared Driveway

In specific circumstances, the law will recognize a non-owner’s rights in another party’s land, which may arise in the form of an easement.  The Massachusetts Land Court recently addressed this issue when deciding a plaintiff’s claim of a prescriptive easement over her neighbor’s driveway.  In Dinino v. Newman (Mass. Land Ct. Nov. 7, 2016), the plaintiff originally sold a portion of her property to her daughter, who then sold it to the defendant in 2013.  The plaintiff alleged that she had an easement to drive over and park on the defendant’s driveway and continue beyond the driveway over a now fenced-off section of the defendant’s property to park in her own backyard, as she had been doing when her daughter owned the property.

In Dinino, there was no express easement regarding the use of the parties’ respective property.  Nevertheless, a prescriptive easement is based on the adverse use of another party’s land, and it may arise without an express document, purchase, or grant.  To be entitled to a prescriptive easement, the plaintiff must prove her (1) continuous and uninterrupted, (2) open and notorious, (3) adverse, nonpermissive use of another party’s land (4) for a period of 20 years or more.  The essence of non-permissive use is a lack of consent from the true owner.  This adversity must manifest by clear and unequivocal acts so that notice to the owner could be reasonably inferred.

The dispute in Dinino arose when the defendant enclosed the rear of his section of the driveway by erecting a fence in 2014, shortly after he purchased the property from the plaintiff’s daughter.  Before the closing, the plaintiff’s daughter approached the defendant to see if he had any objection to their granting an express easement to the disputed area prior to the sale.  The defendant refused to buy the property if it was burdened with such an easement, so the plaintiff’s daughter continued with the sale of the property without the easement.

The plaintiff then filed suit against the defendant, contending that she acquired a prescriptive easement over the defendant’s section of the driveway, based on her prior use over the past 20 years.  The driveway at issue in Dinino was a common, shared driveway that had been jointly used by the plaintiff and the plaintiff’s daughter for over 25 years before it was sold to the defendant.  However, the land court found that this shared arrangement was deliberate and not at all adverse, and furthermore, the previous owners gave permission allowing the plaintiff to use the area in dispute.  In so finding, the land court observed that they had worked together to maintain the driveway and noted that the familial relationship was indicative of permissiveness.

Enlisting the services of a real estate lawyer may be advantageous if you are involved in a legal dispute regarding your property.  At Pulgini & Norton, our Massachusetts land use attorneys provide guidance to individuals interested in purchasing property, obtaining permits, inquiring about zoning or tax regulations, refinancing their mortgages, and other real estate issues.  For more information, schedule an appointment with an attorney at Pulgini & Norton by calling (781) 843-2200 or contacting us online.

More Blog Posts:

Massachusetts Land Court Finds No Right of Way to Access Landlocked Parcel, Massachusetts Real Estate Lawyer Blog, published April 25, 2016

Massachusetts Appeals Court Sides with Property Owner in Case Against Town Over Easement Rights, Massachusetts Real Estate Lawyer Blog, published August 22, 2016

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