Easements

Condo Unit Owners Dispute Right to Fence, Access Property in Massachusetts Real Estate Case

Published on: July 10, 2017 | by Pulgini & Norton, LLP

In a July 7, 2017 decision, the Massachusetts Land Court addressed a real estate dispute between condominium owners over their respective rights to access certain areas of the property. The parties were unit owners in a two-unit, residential condo. The plaintiffs in the case sought to prevent the defendants from installing a fence they claimed would prevent them from accessing and using land in which they have exclusive rights. The plaintiffs also requested recognition of an implied easement by necessity over a portion of the condominium common area, which had been designated for the exclusive use of the defendants’ unit.

The land court first looked at the site plan of the master deed to determine the rights of the parties. The plan provided that the exclusive rights area for the plaintiffs’ unit included a portion of the front yard, including the parking area for that unit, and continued along the side of the condo building, narrowing where it runs parallel to the defendants’ exclusive rights area directly behind the building, and opening to the rearmost portion of the plaintiffs’ exclusive rights area at the far southern end of the property. The plan depicted the defendants’ exclusive rights area as covering the remainder of the property, including the yard area directly behind the building.

When the defendants informed the plaintiffs of their intention to remove the existing stairs and install a fence around the backyard portion of their exclusive rights area, the plaintiffs objected, asserting that the changes would prevent them from accessing their own rear yard. After reviewing the master deed, the land court concluded that the defendants were within their rights under the deed to install the fence and remove the stairs located on their exclusive area. The land court also ruled that the defendants’ actions did not violate the plaintiffs’ rights under the deed because they did not infringe on the plaintiffs’ exclusive area nor the common areas of the property.

Massachusetts Court Determines Non-Owner’s Right to Use Abandoned Telephone Easement

Published on: May 22, 2017 | by Pulgini & Norton, LLP

Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right. The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants. The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property. The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years. The easement claimed is limited to the uses actually made of the section of property that meet those elements. The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography. Roots, stumps, and rocks had been left in the path. At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it. Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company. By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

Massachusetts Land Court Denies Non-Owner’s Claim of Prescriptive Rights in Beach Property

Published on: May 1, 2017 | by Pulgini & Norton, LLP

The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.

In Massachusetts, an easement by prescription is acquired by 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 plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

Massachusetts Court Affirms Plaintiffs’ Legal Right to Use Beach Access Path On Defendants’ Property

Published on: March 13, 2017 | by Pulgini & Norton, LLP

In some situations, a well-traveled path through another’s personal property may give rise to an easement over time. In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach. The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions. When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road. Thereafter, the same developer was hired to develop the plaintiff’s subdivision. The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road. In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way. Despite the sign, the defendants regularly observed people using the road to access the beach.

Massachusetts Landowner Files Suit After Neighbors Construct Fence

Published on: March 6, 2017 | by Pulgini & Norton, LLP

It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners. Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways. The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property. The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession. Both parties appealed that decision to the higher court for review.

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road. After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911. The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways. In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively. The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.

Massachusetts Homeowners Prevail in Easement Action Filed by Real Estate Developer

Published on: January 16, 2017 | by Pulgini & Norton, LLP

In a recent case before the Massachusetts Land Court, a real estate developer filed an action against the adjacent property owners and neighborhood association, claiming an easement for vehicular passage over their lots. In Bucks Hill Realty, LLC v. Gill (Mass. Land Ct. Jan. 11, 2017), the developer-plaintiff sought a declaration that it had an express or implied appurtenant easement to use the road at issue to get between its parcel and the public street. The plaintiff also asked the court to enjoin the defendants from interfering with its use of the road.

In Massachusetts, the party asserting the benefit of an easement has the burden of proving its existence, its nature, and its extent. A plan cited in a deed showing an easement becomes part of the contract as far as it may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. When an ambiguity exists in a deed, contract, or other instrument, it is proper to look beyond it for meaning.

In Bucks Hill Realty, LLC, the parties’ lots were subject to a declaration of covenants, conditions, and restrictions. The declaration referenced two plans, each of which showed two differing points of termination for the easement. While the first plan depicted an easement that continued through the defendants’ land into the plaintiff’s lot, the later plan terminated the easement before it reached the plaintiff’s property. Due to this discrepancy, the parties agreed that additional facts were required to determine the extent of the easement set out in the declaration.

Massachusetts Property Owner Seeks Injunction Against Defendants from Overloading Access and Utility Easements

Published on: December 5, 2016 | by Pulgini & Norton, LLP

Certain rights in property may be granted to non-owners, including the right to use another party’s property for a particular purpose, which is referred to as an easement. Disputes regarding the scope of the easement may arise if that use changes or becomes overloaded, as in the case of Kent v. Roma III, Ltd. (Mass. Land Ct., Nov. 23, 2016).

In Kent, the plaintiff’s property was burdened by easements granted by the previous owners for the benefit of one of the defendant’s lots, Lot B. The defendant subsequently combined Lot B with an adjacent lot that it owned. The defendant obtained permits for, and commenced construction of, a large single-family dwelling on the Combined Lot, claiming that the access and utility easements that had been granted to Lot B may not be used to serve the Combined Lot. The plaintiff sought relief from the Land Court to prevent the defendant from expanding the use of the access and utility easements appurtenant to Lot B to serve the new dwelling on the Combined Lot.

In Massachusetts, the established rule is that, absent the express consent of the owner of the servient estate, the use of an appurtenant easement to benefit property located beyond the dominant estate constitutes an overloading of that easement. In Kent, the plaintiff owned the servient estate, and the defendant owned the dominant estate with an easement in the plaintiff’s property. The defendant argued that it was entitled to an exception to the rule, relative to after-acquired property. In particular, the defendant contended that since the easements at issue would serve only one dwelling instead of the two dwellings previously located on Lot B, their use for the Combined Lot would not result in an increased use or burden on the plaintiff’s property.

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

Published on: November 14, 2016 | by Pulgini & Norton, LLP

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.

Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer

Published on: November 7, 2016 | by Pulgini & Norton, LLP

When a local planning board makes a decision regarding a real estate matter, adversely affected landowners may be able to appeal and argue their case. In Siok v. Planning Bd. of Ludlow (Mass. App. Ct. Oct. 31, 2016), the Appeals Court of Massachusetts reviewed a decision by a planning board, which had approved a developer’s petition to modify a subdivision plan by eliminating an unbuilt roadway known as a spur. The plaintiffs were owners of an undeveloped, landlocked parcel abutting the subdivision and required access via the spur. The plaintiffs appealed, arguing that the board exceeded its authority in granting the defendant’s new plan and that they had acquired an easement by estoppel over the unbuilt spur. The decision was affirmed by the land court and subsequently taken to the appeals court.

In Siok, the developer’s plan was originally approved in 2007. It showed the spur extending from one of the roads in the subdivision to the land owned by the plaintiffs, but it did not require the spur to be built or require an easement to be granted or reserved for the benefit of the plaintiffs. The spur road was, in fact, never built, and the plaintiffs had no access to their land through the subdivision. In 2012, the developer sought to remove the spur from the plan, and the local planning board granted the request. In doing so, the board granted a waiver of the requirement of a second means of access to a subdivision exceeding eight lots.

Massachusetts Appeals Court Decides Issue of First Impression in Beachfront Property Dispute

Published on: October 24, 2016 | by Pulgini & Norton, LLP

Beachfront property can involve interesting legal issues as a result of changing shorelines. Accretion occurs when the line between water and land is changed by the gradual deposit of alluvial soil upon the margin of the water. In a recent real estate case, Brown v. Kalicki (Mass. App. Ct. Oct. 20, 2016), the Appeals Court of Massachusetts addressed the question of whether accreted beachfront took on the status of registered land as it formed, or whether registered status must be obtained by amending the title in court proceedings.

In Brown, the plaintiff’s land was originally registered in the 1920s and 1930s. The boundary line was identified in the certificate of title as the Nantucket Sound. In the decades following registration, the size of the parcels grew substantially as a result of accretion. The plaintiffs filed a petition to establish their respective ownership rights in the accreted land. The defendants intervened in the action, claiming that they acquired prescriptive easements to use the beach area on the plaintiffs’ land. The plaintiffs responded that, pursuant to Massachusetts statute, the defendants could not obtain prescriptive rights in registered land. After the land court found in favor of the plaintiffs, the defendants appealed.