The classification of a road as a public or private way can be significant. The decision may impact the level of control that adjacent property owners have over it, as well as the public services that are available to repair and maintain the way. In a December 19, 2018 Massachusetts real estate case, the plaintiff filed an action against the city, seeking a determination from the Land Court that the way allowing access to her home was private. The distinction as a private way would exempt it from the requirements of a local zoning ordinance.
The primary question for the court was whether the way was an easement or a private way that could be considered frontage under the local zoning law. As a preliminary matter, the Land Court held that the plaintiff had the burden of proof to show that the municipal ordinance did not apply to the way at issue. The Land Court first looked to the original 1891 deed to determine the intent of the grantors.
The City argued that because the initial conveyance in 1891 included the area as a right of way, the intent of the grantor was to create an easement. The plaintiff contended that the language granting the right of way in the deed was not a conventional easement, as there was no dominant or servant estate tied to the grant. Further, the deed had granted a right of way over an area that currently served as the main road, which later became partially a private way and partially a public way open for use by the general public.
After reviewing the subsequent deeds, the court found that the way had later been renamed, and no longer matched the name of the main road. Although the deeds to the other properties abutting the way at issue were not granted an easement, the court applied the derelict fee statute to those conveyances, which allows for the presumption that the grantor conveying a parcel of land also intended to convey title up to the center of a way abutting that land.
The court also noted that one of the definitions of private way in the local ordinance included a way that was not a public way, but which had been opened to public use for six years or more. The court then pointed to evidence that the way had been open for public use without obstruction and fell within the definition of private way. Accordingly, the Land Court held that the way was as a private way for purposes of the local zoning laws and the frontage definitions in the ordinance at issue.
The Massachusetts real estate lawyers at Pulgini & Norton handle legal matters concerning residential property. If you are seeking guidance in a purchase or sales transaction, land use matter, zoning appeal, or any other residential real estate issue, we may be able to assist you. Schedule a free consultation with an experienced attorney by calling our office at (781) 843-2200 or sending a request online.
More Blog Posts:
Massachusetts Plaintiff Seeks to Enforce Greater Easement Rights Against Town in Property Action, Massachusetts Real Estate Lawyer Blog, published September 11, 2017
Massachusetts Homeowner Wins Land Action Against Town, Acquires Use of Private Roadway, Massachusetts Real Estate Lawyer Blog, published September 18, 2017