Massachusetts Real Estate Lawyer Blog
A homeowner may file an action to quiet title in order to claim their ownership rights of the property in question. In a September 4, 2019 Massachusetts property case, the plaintiffs brought an action in Land Court claiming ownership of a way that lined one side of their property. The plaintiffs also sought a judgment that the defendant, a neighboring property owner, had no rights in or over the way.
The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue. When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property. The fence was installed by the previous owner of the defendant’s property. It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way. In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.
Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise. The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way. The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.
To succeed in on their adverse possession claim, the plaintiffs must prove non-permissive use, which is actual, open, notorious, exclusive and adverse for twenty years. The Land Court ruled that the plaintiffs provided sufficient evidence to establish their adverse possession claim. Specifically, the court noted that only the plaintiffs and their tenants use the way for access to the row houses, that only the plaintiffs had plowed snow and maintained the way, and that the fence, which had been in continuous existence since at least 1985, had prevented the defendant and the prior owners of the defendant’s property from using the way.
Insofar as the defendant claimed its right to an easement over the way, the Land Court went on to rule that any such easement rights had been abandoned by the prior owners of the defendant’s property. In Massachusetts, an easement is extinguished by abandonment through acts that are inconsistent with the continued existence of the easement, and which show an intent to abandon it. Finding no evidence that the defendant or its predecessors had ever used the way, the court held that the defendant’s easement rights had been extinguished by abandonment. Consequently, the plaintiffs were successful in their action.
If you are seeking experienced legal representation for a residential real estate matter, the Massachusetts property attorneys at Pulgini & Norton can assist you. We handle a wide range of real estate issues, from title actions and home closings to mortgage re-financing and foreclosure cases. Arrange a free consultation with one of our skilled property lawyers by contacting Pulgini & Norton online or calling our office at (781) 843-2200.