Establishing Your Right of Way in Massachusetts

By Robert Nislick

You live in an idyllic Massachusetts town established in colonial times. One of the oldest roads in the county, such as Boston Post Road, Old Sandwich Road, or Old Connecticut Path, may run through your neighborhood. If your house fronts a public way, you should have no problem traveling to and from your property. For many people, it is as simple as pulling out of their driveway.

Many of the roads in our modern suburbs were laid out in accordance with the Subdivision Control Law, enacted in 1953, “for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns in which it is, or may hereafter be, put in effect by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein . . . .”[1]

But it is not so simple for everyone. You may live in an area that was settled in the 1800s or early 1900s. Large tracts of land may have been owned at one time by just a few people.  These former landowners subdivided, acquired, and conveyed their property as their needs required. Often they used their land for agricultural purposes or as a source of timber. They were not thinking about your need to drive to work, the grocery store, or to your kids’ hockey game.

They may have granted rights of way or laid out paper streets running through a subdivision. “A right of way provides rights of ingress, egress, and travel over the land subject to the easement.”[2] “We use the term ‘paper street’ to mean a street shown on a recorded plan but never built on the ground.”[3] It was a fairly common practice in the early 1900s, for landowners to draw plans which created many tiny lots with roadways running through them. Sometimes these postage stamp-sized lots are referred to as camp lots. Someone might buy a cluster of ten of these lots, and they would own an acre of land. In any event, the large tracts were in rural areas, and the streets were never built. They exist only on paper.

Alternatively, the common grantor of your property may have developed his land in sections, and it may not be clear if he has sufficiently established a right of way for use by all, or more importantly, for you.

In any event, you may find yourself living next door to someone who does not like that you are driving over “his land” to get to your house. A way shown on a plan and never built may be your driveway. But it may also be your neighbor’s side yard.

You start to have disagreements with your neighbors. Things get ugly, and they sue you in Land Court or Superior Court.  What can you do? Call Robert Nislick, a Massachusetts easement attorney, real estate litigator, and former Land Court law clerk, today. Easement law is complex. I can help you develop the most effective strategy for proving that you enjoy a right of way or other easement over your neighbor’s property.


[1] See G. L. c. 41, § 81M.

[2] Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 496 (2008).

[3] Shapiro v. Burton, 23 Mass. App. Ct. 327, 328 n.3 (1987).

One thought on “Establishing Your Right of Way in Massachusetts

  1. Pingback: Getting and Removing a Lis Pendens in Massachusetts | Robert Nislick, Attorney at Law

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