Massachusetts Real Estate Lawyer Blog
An easement is a property right that may, in some situations, be abandoned or extinguished by law. In a May 2, 2019 Massachusetts real estate case, the Land Court considered whether the defendant held an easement over an area abutting its property. The area in dispute was a “paper way”, as it was conveyed and described in the deed as a right of way but had never been constructed.
The defendant in the case owned a large apartment complex. The paper street was located between the plaintiff’s properties and, in the deed, continued through to the defendant’s property. In 1993, the prior owner of the apartment complex installed a six-foot fence, cutting off its own access to the paper street. Since then, the plaintiffs claimed to have used the paved portion of the paper street as a driveway and parking area, and the unpaved portion as a lawn, grilling area, and wooded area.
The plaintiffs filed an action against the defendant in Land Court, seeking a declaratory judgment that it owned the paper street in fee and that the defendant had no property rights over it. The Land Court addressed the issue of the defendant’s easement rights when the parties moved for summary judgment. The plaintiffs argued that any rights the defendant had in the paper street were extinguished by prescription or abandoned.
In Massachusetts, to extinguish an easement by prescription, the plaintiffs must show that their actions violated and were manifestly adverse to the defendant’s rights in the easement for a period of twenty years. The court concluded, to the extent that the plaintiffs and the prior owners of their land had maintained a retaining wall and deck on a portion of the paper street for over 32 years, their actions sufficiently made it impossible for the defendant to use or exercise its rights over the easement for the required length of time. The court explained, however, that the easement rights extinguished by prescription only pertained to one portion of the paper street.
The court went on to address whether the remaining portion of the easement had been extinguished by abandonment. To abandon an easement, the actions of the defendant must conclusively and unequivocally manifest an intent to relinquish its rights in the easement. The court held that the prior owner of the defendant’s apartment complex had abandoned any rights it had in the paper street easement by constructing a fence around the perimeter of its property, creating its own road system within the apartment complex, and failing to use the easement for over thirty years. Accordingly, the court ruled that the defendant no longer possessed an easement over the paper street.
At Pulgini & Norton, our Massachusetts real estate attorneys handle a wide range of legal matters on behalf of residential property owners and purchasers. From mortgage and re-financing options to building permits and land use regulations, our capable attorneys can assist you with any residential real estate issue you may have. Contact us online or call (781) 843-2200 to request a free consultation with a property lawyer at Pulgini & Norton.