Easements

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...

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

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).

No easement relocation without easement owner's consent when it would diminish the easement's utility

Applying the rule in M.P.M. Builders, LLLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004) and the Restatement (Third) of Property (Servitudes) §4.8(3) (2000), a court has held that a servient estate owner may not relocatee an easement without the consent of the easement owner when it would diminish the utility of the easement.Randon v. Kiley-Ladd, 2018 Mass. LCR LEXIS 152, 2018 WL 3567179 (Mass. Land Ct. 2018). The court... Read more about No easement relocation without easement owner's consent when it would diminish the easement's utility

Town acquires prescriptive easement allowing public to use a road and abutting parcel

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town's highway superintendent maintained the area, plowed, sanded...

Read more about Town acquires prescriptive easement allowing public to use a road and abutting parcel

Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement "practically impossible" can it start the statute of limitations running for a prescriptive easement that will extinguish the...

Read more about Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the...

Read more about Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises...

Read more about Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n...

Read more about Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

Courts may consider extrinsic evidence to interpret ambiguous easements

A Massachusetts appellate court had the difficult tasking of deciding whether a view easement prohibited all structures or only structures over eight feel high. MacLean v. Conservation Comm'n of Nantucket,(Mass. App. Ct. 2018). The easement language created a "view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said lot." The court held that " the absence of a comma after the word 'structures' combined with the use... Read more about Courts may consider extrinsic evidence to interpret ambiguous easements