Servitudes

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...

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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...

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Short term rentals (such as Airbnb) held not to violate a covenant prohibiting "commercial use" contrary to rulings of some other courts

Courts disagree about whether covenants prohibiting "commercial use" of real property apply to short term rentals like Airbnb. While some courts have said that such rentals do constitute commercial use, see, others have found the use not to be commercial but residential in nature. The Arkansas Supreme Court joined the courts that find Airbnb to be a residential rather than a commercial use of property....

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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

Doctrine of implied reciprocal negative servitudes only applies within the area intended to be covered by the general plan of uniform development

In Walters v. Colford, 900 N.W.2d 183 (Neb. 2017), a developer sold 14 lots with identical covenants restricting the property to one single-family two-story house and garage. The developer then solder a five-acre adjacent parcel without the covenants. The Nebraska Supreme Court held that the five-acre parcel was not part...

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Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. ...

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Dog breeding as commercial use that violates covenant limiting property to residential purposes

The Massachusetts Land Court held that an owner who housed, bred, and sold dogs on his property (and obtained a commerical license to do so up to 12 dogs) violated a restrictive covenant limiting the property to residential use. Clish v. Paradise, 2017 Mass. LCR LEXIS 5, 2017 WL 72055, 25 LCR 13 (Mass. Land Ct. 2017).  Read more about Dog breeding as commercial use that violates covenant limiting property to residential purposes

Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than... Read more about Appurtenant easements cannot be used to access after-acquired land next to the dominant estate