Massachusetts Real Estate Lawyer Blog
One of the most important factors in a Massachusetts prescriptive easement claim is whether the claimant’s use of the property was permissive or adverse. The Land Court recently addressed this issue when deciding an April 5, 2019 case. The plaintiff in the case sought to improve a section of a path located on the defendants’ property, claiming that he had the right to make improvements because he held a prescriptive easement over the path.
The defendants’ property and most of the surrounding land had traditionally been used for cranberry farming. The path in dispute was part of a long-existing system of cart paths that wound through the fields to various ponds. At present, part of the path was used as the defendants’ driveway and connected to the main road.
The plaintiff had a direct route to the main road as well, which was located entirely on his property. However, rather than using that route, the plaintiff sought to improve and use the section of the path located on the defendants’ property and used as their driveway to access the main road. The plaintiff asserted his rights to improve the path through a prescriptive easement claim.
To assert easement rights in Massachusetts, the plaintiff has the burden to prove that an easement exists. An easement by prescription is acquired by the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another’s land (4) for a period of not less than twenty years. If any element remains unproven or left in doubt, the plaintiff cannot prevail.
In the case, it was undisputed that the plaintiff and the predecessor owners had openly used the path. If that use was sufficiently significant and continual for two decades or more and, if so, on which sections of the path, were in dispute, but the Land Court did not reach those issues. Rather, the court found that whatever use had occurred in connection with the path was not adverse but, instead, permissive. Permission, express or implied, negates adversity.
The court pointed to evidence that revealed that the use of the path was not sufficiently adverse, so as to put the rightful owners on notice of the plaintiff’s claim of right to the path. Instead, the conduct of the landowners in the area demonstrated friendly cooperation and a mutually supportive relationship in tending the land. The court found that, in light of their relationship, the nature of the use of the path, and their actions, the plaintiff and predecessors had used the path with implied permission, and not adversely. As such, the court ruled that neither the plaintiff, nor his predecessors in title, had ever held a prescriptive easement over any portion of the path, and dismissed the claim.
The Massachusetts property attorneys at Pulgini & Norton handle a wide range of residential real estate matters, including adverse possession and prescriptive easements. We can also assist individuals with mortgages, home closings, building permits, land use regulations, and more. Call (781) 843-2200 today and schedule a free consultation with one of our attorneys or submit our contact form online.