Massachusetts Real Estate Lawyer Blog
In some cases, legal action is required to protect a landowner’s rights to a part of their property used by others. In a July 11, 2017 Massachusetts real estate case, the issue for the land court was whether the defendants and their guests had an appurtenant prescriptive easement for the unrestricted pedestrian use of a beach path located on the plaintiff’s property.
For decades, with the permission of the plaintiff and its predecessors in title, local residents have occasionally used the path to access the beach. There is no public access to the path, and the local residents are alert to outsiders’ cars and chase them away. Because of the parcel’s remote location, the hilly terrain, and the overgrowth surrounding it, it is impossible to notice anyone using the path unless the observer is on the path as well.
Opened seasonally since 1993, the defendants have operated a seven-guestroom inn and restaurant near the plaintiff’s parcel of land. Despite having two other legitimate means of beach access, and without giving notice or seeking permission from the plaintiff, the defendants encouraged their guests to use the path on the plaintiff’s parcel to get to the beach. On average, the guests used the path twice a day, and they were on the plaintiff’s parcel for only a minute or two as they walked to the beach. None of the guests lingered on the property itself or left any sign of having been there. Even if the guests were seen, moreover, they could not be distinguished from the local residents to whom the plaintiff had given permission to use the path.
To establish a prescriptive easement in Massachusetts, a claimant must show the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The purpose of the open and notorious requirement is to provide the owner with a fair chance to protect their property interests. Use is considered “open” if the claimant makes no attempt to conceal his use of the land, and it is notorious if the claimant maintained a reasonable degree of supervision over the property that put the owner on notice. An owner’s actual knowledge of adverse use satisfies this element, but it is not required.
The land court noted that the defendants and their guests had used the plaintiff’s beach path for over 20 years. However, while the defendants’ guests did not conceal their use, their use was not sufficiently obvious to alert a reasonably diligent landowner to their use. The land court explained that the plaintiff could not have discovered the defendants’ presence on the path without more, since the surrounding landscape obscured any view of the path, and the defendants’ guests only used the path twice a day. Accordingly, the land court concluded that the defendants’ use was not notorious, and as a result, they did not have any prescriptive easement.
The Massachusetts land use attorneys at Pulgini & Norton can provide trusted advice to home and property owners. Our capable legal team can handle all aspects of residential real estate, including closings, financing, special permit applications, title actions, and more. Advance your interests with an experienced property lawyer by calling Pulgini & Norton at (781) 843-2200 or contacting us online to make your appointment today.
More Blog Posts:
Massachusetts Land Court Denies Non-Owner’s Claim of Prescriptive Rights in Beach Property, Massachusetts Real Estate Lawyer Blog, published May 1, 2017
Massachusetts Property Owner Opposes Second Story Addition to Neighbor’s Beach House, Massachusetts Real Estate Lawyer Blog, published June 26, 2017