Servitudes

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).

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).

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

/ Easements, Servitudes

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 found as a factual matter that the proposed relocation would diminish the utility of the easement and, because the owner of the easement objected, the relocation would not be allowed.

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

/ Adverse Possession, Easements, Servitudes

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 easements after the statutory period. The court required greater evidence that the easement owner was actually excluded and that the land owner was actually exercising exclusive control over the path.

Airbnb use held to be consistent with covenant restricting property to residential use

/ Condominiums and Homeowners Associations, Consumer Protection, Servitudes

Courts have divided on the question of whether short-term rentals violate restrictive covenants limiting land to residential purposes. The Texas Supreme Court just joined the majority that hold that use of property for Airbnb and similar short term rentals is residential use consistent with the covenant. Tarr v. Timberwood Park Owners Ass’n, 2018 Tex. LEXIS 442 (Tex 2018). But see Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) (finding short-terms rentals to be closer to hotel use and thus commercial in nature).

Courts may consider extrinsic evidence to interpret ambiguous easements

/ Easements, Servitudes

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 of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.” Id.at 3. That ambiguity made the meaning of the language a question of fact to be determined by the trial court on remand.

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

/ Leaseholds, Servitudes

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. Vera Lee Revocable Trust v. O’Bryant, 537 S.W.3d 254 (Ark. 2018). Accord, Slaby v. Mountain River Estates Residential Ass’n, Inc.,100 So. 3d 569 (Ala. Ct. Civ. App. 2012). This is an ongoing debate among courts: 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. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014). Other courts find short term rentals to be …

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

/ Condominiums and Homeowners Associations, Consumer Protection, Easements, Real Estate Transactions, Servitudes

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, Inc. v. Chosse, 2018 Mass. App. Div. 54, 2018 Mass. App. Div. LEXIS 14 (Mass. Dist. Ct. App. Div. 2018). The court found that the assessments were not covenants subject to a termination clause but were implied obligations to share in the burden of maintaining a common benefit in the private roads that arose as an equitable servitude and implied contract.

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

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

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 because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties …

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Easement by necessity can be widened and its uses can be expanded

/ Easements, Servitudes

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant property. An easement created in 1828 was used for road access and transportation of timber. More than a hundred years later, the Virginia Supreme Court not only allowed new methods of transportation to be used (tractor-trailers) but allowed the road to be widened to accommodate the new uses. Because the easement guarantees access to the dominant estate and the ability to use it effectively, the use of the easement can expand to accommodate the new uses to which the dominant estate is put. There is a limitation that the easement cannot be widened in …

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