Property Law Developments

No right to pave prescriptive easement in rural area

In a case that rests on neighborhood norms and prescriptive easement doctrine, the Massachusetts Land Court has held that while an easement owner can maintain an easement, the easement owner here could not pave the road even though the unpaved road had holes that made it difficult to drive and had damaged the easement owner's car. Unpaved roads were common to the area and desired by the owner of the servient estate...

Access easement found even though not noted on certificate of title to registered land

Massachusetts courts have several times ruled that access easements may be recognized even though language creating an express easement may be missing or ambiguous in the deeds to the servient estate. Hickey v. Pathways Ass'n, 37 N.E.3d 1003 (Mass. 2015) (access easement recognized over registered land even though it is not in the...

Prescriptive easement to discharge water onto neighboring land

The Massachusetts Land Court has held that an owner can acquire the right to collect and discharge surface water onto neighboring land by prescription if this continues without permission by the servient estate owner and the other requirements for prescriptive easements are met. JPM Dev., LLC v. Nemetz, 2018 WL 4892726 (Mass. Land Ct. 2018). However, in a companion case, it emphasized that the amount of discharge is set by the historic use throughout the prescription period and any increase in that use is a trepass. Putney v. O'Brien, 2018 WL 6183338 (Mass. Land Ct. 2018).

Forged deed is void

Affirming a longstanding rule of law, the Massachusetts Land Court ruled that a forged deed has no effect. McNeff v. Cerretani, 2018 WL 4370147 (Mass. Land Ct. 2018).

Bankruptcy law preempts state tenancy by the entirety law

The Bankruptcy Code allows forced sale of property owned by a married couple as tenants by the entirety against the will of the non-debtor spouse. In re Green, 2018 WL 4944988 (Bankr. E.D. Mass. 2018) (interpreting 11 U.S.C. §363(h)).

Delaware creates mechanism to strike unlawful discriminatory covenants from recorded instruments

Delaware has passed a statute creating procedures to excise discriminatory or otherwise unlawful covenants in recorded deeds. The stricken portions in the chain of title are deleted and can only be revealed by the recording office in response to a subpoena. Del. Code tit. 9, §§9605, 9628 (81 Del. Laws 409).

California prohibits transfer fee covenants

California has joined the increasing number of states that have passed statutes prohibiting transfer fee covenants that require payments to the original seller or covenantor each time the property is sold. Cal. Civ. Code §1098.6 (2018 Cal. Stats. ch. 306).

Short term rental use held not to violate covenant prohibiting "commercial activity"

The courts continue to split on this question with the majority holding use of property for short-term rental (such as vacation rental or Airbnb use) is a residential rather than a commercial use. The Wisconsin Supreme Court has joined the courts that have found short-term home rentals to be consistent with a covenant prohibiting "commercial activity."...

Restrictive covenant held not to be "property" compensable under the takings clause

A town bought a parcel of land subject to a restrictive covenant in order to build a municipal water storage tank contrary to a restrictive covenant prohibiting such construction. The town sued for a declaratory judgment that it could violate the covenant without paying just compensation under the fourteenth amendment's takings clause. Relying on an earlier case decided by the Colorado Supreme Court, Smith v. Clifton...

City takes property when it constructs a public park and invites the public to cross private property to access the park

A city created a public park next to private property and then used physical signs, maps on Web sites, and other methods to suggest to the public that they were free to cross that private property to get to the beach. Those acts were sufficient to constitute a taking of property without just compensation. The city effectively took a public easement from the private owner....

Joseph William Singer

Bussey Professor of Law, Harvard Law School