Easements

Abandonment of an easement shown when fence closes access to it

/ Adverse Possession, Easements

Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts “render[ed] use of [the] easement practically impossible” for the statutory period.  Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019). The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an “intent to abandon the easement by acts inconsistent with the continued existence of the easement.” 21 LCR at 216. “Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate.” However, an “extended period of nonuse is a factor to consider in determining whether an easement has been abandoned,” especially when combined with “acquiescence to the use …

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Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

/ Adverse Possession, Easements

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another’s land are nonpermissive unless evidence of permission is present.

No easement by necessity to access fire escape

/ Easements

No easement by necessity exists that would allow a condo owner to pass through another condo to reach a fire escape. Nor was there an express easement even though the condo documents gave the unit owner the right to use the fire escape. Chamberlain v. Badaoui,  95 Mass App. Ct. 670, 2019 Mass. App. LEXIS 93, 2019 WL 3334700 (Mass. App. Ct. 2019). No express right to go through the neighboring unit to get to the fire escape was created and the court refused to create one by implication. Instead, the plans showed a second exit to the interior stairway.

External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim

/ Easements, Trespass

A Massachusetts court has found that a one foot encroachment on neighboring property by a new external stairway on a building is de minimus because the alley is hardly used, and the encroachment is both small and necessary to make the stairway consistent with the building code. Krieger v. Lanark LJS LLC, 2019 Mass. App. Unpub. LEXIS 345, 2019 WL 1976015 (Mass. App. Ct. 2019). A claim for injunctive release to move the encroachment was denied for those reasons and also because the encroaching owner had acted innocently, relying on an incorrect survey, and did not know that the stairway would extend onto the neighbor’s land. If the encroachment had been significant, an injunction would have been issued for it to be removed, even though it was built in a good faith belief that it was on the builder’s land. Here the encroachment was not significant because “the unlawful encroachment [was] …

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Easement by necessity extinguished by marketable title act

/ Easements, Servitudes, Title Issues

Vermont’s marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a “recorded agreement.” In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the Vermont Supreme Court held that easements by necessity fit into neither of those categories and thus need to be re-recorded every forty years to preserve them. While the case resulted in a landlocked parcel, the Court found the statutory policies of clearing title to be more important than ensuring access to a landlocked parcel.

California beachfront owner temporarily denied power to place a gate limiting public access to the beach

/ Easements, Real Estate Transactions, Takings, Trespass

The Supreme denied certiorari from a California court that interpreted California statutes to ensure public access to the beach and that prohibited a beachfront owner from installing a gate to prevent such public access. Surfrider Foundation v. Martins Beach 1, LLC,221 Cal.Rptr.3d 382 (Ct. App. 2017). The court did not rule on the owner’s claim that the state law requiring him to allow access across his property effected a taking of property without just compensation. It found the regulation to be temporary since state law merely required the owner to seek a permit before closing access to the beach when permissive access had previously been given. It did not consider the order to allow access to constitute a temporary taking since it preserved the status quo before the owner’s action (installation of the gate) that triggered the state permitting requirement.

Prescriptive easement to discharge water onto neighboring land

/ Easements, Servitudes

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).

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

/ Easements, Real Estate Transactions, Title Issues

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 certificate of title to servient estates when mention of it appears in titles to the dominant estates and maps indicating the easement were recorded at the registry and available to the servient estate owners before purchase); Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006) (right to use lots as parks found from recorded map). See also Loiselle v. Hickey, 107 N.E.3d 1205 (Mass. App. Ct. 2018); Leahy v. Graveline, 971 N.E.2d 307 (Mass App. Ct. 2012) (both interpreting ambiguous recorded maps and deeds to determine if neighboring owners have access easements).

No right to pave prescriptive easement in rural area

/ Easements, Servitudes

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 and the easement had been obtained by prescription over the unpaved road. In effect, the court held that paving the road would exceed the uses the prescriptive easement owner had been making of the property. Ferris v. Bernstein, 2018 WL 6332991 (Mass. Land Ct. 2018).

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