Robert Nislick 
You are a Massachusetts homeowner. A private way provides ingress and egress to your property. The private way may be located entirely on your lot, or on your neighbor’s lot, or partially on both lots. Your lot is benefited by an easement, which allows you to use part of the neighbor’s property. The easement area may essentially be a common driveway that allows you to travel from your house to the street.
A dispute arises concerning what you can do on the easement. One area of contention centers on whether parking is allowed on the easement. You may wish to park on the easement, in addition to simply driving or walking on it. Your neighbor, however, asserts that no parking is allowed.
Is parking allowed on the easement? Answering this question requires a careful analysis of the grant of easement. Assuming the easement was created by express grant, then this document will have been recorded at the registry of deeds. The instrument which granted the easement should be relatively easy to find. Your deed may include a reference to the book and page where the easement is recorded. Similarly, you may see a reference to a plan which was recorded in connection with the grant of the easement.
Whether you can park on the easement depends heavily on the language used in the grant of easement. Some easements contain very detailed language concerning what uses may or may not be made.
“The general principle governing the interpretation of deeds is that the intent of the parties is ascertained from the words used in the written instrument interpreted in the light of all the attendant facts” . . . . Assad v. Sea Lavender, LLC, 95 Mass. App. Ct. 689, 693 (2019). The same principles apply when interpreting easements created by conveyance. See, e.g., id.; Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998).” Mazzola v. O’Brien, 100 Mass. App. Ct. 424, 427 (2021).
The right to park, or lack thereof, may be clearly and unambiguously defined in the deed of easement. Other easements, however, may grant one owner a right of way over the other’s property to reach Maple Street, but say little more than that. And the scope of some easements may be ambiguous because they are susceptible to multiple reasonable interpretations.
“[A] right to pass and repass does not normally imply a right to park . . . .” Harrington v. Lamarque, 42 Mass. App. Ct. 371, 375 (1997). This case is often cited when arguing against the right to park. But it is certainly not the definitive statement on whether an easement holder can park on an easement, and it has been distinguished in several Land Court cases.
The easement may not grant merely a right to pass and repass. If the words pass and repass are absent from the easement, then a court should not apply such a limiting construction to the easement.
Rather, the easement language may be stated in very broad terms. For example, an easement to use a right of way “for all purposes for which streets and ways are used” in the town or city may be found to include parking. This may especially be the case when parking was allowed on public streets at the time the easement was created. Such general language shows that the grantor did not intend to prohibit parking.
Similarly, easements may be interpreted to anticipate or accommodate for future uses, even if those uses were not in existence at the time of the grant. An easement may grant a right of way “for the purposes for which public ways and streets are now used or may hereafter be used” in the city or town. Even if such an easement predated the automobile, it can be argued that the rights granted have evolved to allow for parking today.
Additionally, it may be shown that the parties, their predecessors, and even the grantors of the easement parked on it. As such, a court may find that the attendant circumstances surrounding the grant of easement were such that it includes the right to park. Note, however, that the intent of the grantor may be deemed more important than custom and usage that evolved subsequent to the original grant.
About the author: Robert Nislick is a Massachusetts real estate litigation attorney who litigates easement disputes. For more information, contact him at (508) 405-1238, or by e-mail.