Massachusetts Real Estate Lawyer Blog
Property can be restricted in any number of ways through various legal means, such as a covenant or easement, often surviving a transfer of ownership. In an August 11, 2017 Massachusetts real estate case, a plaintiff sought a declaratory judgment from the Land Court stating that she had an affirmative view easement over the property of the defendant. The defendant sought a contrary declaration, arguing that the recorded documents did not support the plaintiff’s position.
The parties in the case lived in the same subdivision on neighboring lots. The plaintiff claimed she had an easement pursuant to the subdivision’s Protective Covenant Agreement, which allowed her to compel other lot owners to trim their trees in order to protect her view of the sound. She filed an action seeking to compel the defendant to top trees on the defendant’s property, asserting that the trees were blocking her view of the sound.
The Protective Covenant Agreement at issue provided that trees may be topped to preserve the view at the expense of the requesting lot owner and with the consent of the developer. The Agreement also stated that subsequent plantings shall not be permitted to grow in such a manner as materially to obstruct the view of others. Despite the fact that the Protective Covenant itself expired in 2002, the plaintiff argued that it created an easement that survived the expiration and remained valid.
The Land Court reviewed the language of the Protective Covenant to determine whether it created an easement in favor of the plaintiff. In viewing the context of the Protective Covenant as a whole, the court concluded that the topping of trees to retain or improve a lot owner’s own view must be paid for by the requesting lot owner and, importantly, requires the developer’s approval. The court went on to explain that in Massachusetts, a view easement requires the identification of dominant and servient estates as well as a clear indication of the scope of the easement. In addition, there must be some indication that the owner of the dominant estate has the right to make changes on the servient estate. The court found no language in the Protective Covenant authorizing the plaintiff to enter onto the defendant’s property in order to carry out a tree topping, which is an essential element of an affirmative easement. Accordingly, it held that the covenant neither created an affirmative view easement, nor did it support the plaintiff’s claim that she has the right to require the defendant to cut trees on her property in order to improve the plaintiff’s view.
At Pulgini & Norton, our Massachusetts real estate lawyers can provide advice regarding any legal issue affecting your residential property. We represent people during the home buying and sale process, building permit applications, mortgages and refinancing, and many other residential real estate matters. Contact Pulgini & Norton to schedule your free consultation with a land use attorney by phone at (781) 843-2200 or online.
More Blog Posts:
Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017
Massachusetts Appeals Court Sides with Property Owner in Case Against Town Over Easement Rights, Massachusetts Real Estate Lawyer Blog, published August 22, 2016