The Surveyor’s Right to Enter Land in Massachusetts

By Robert Nislick

You are a landowner in Massachusetts. Suppose that you are in the midst of a dispute with your neighbor concerning your boundary line. Perhaps your neighbor’s shed encroaches on your property. Maybe you have fenced your neighbor off from his land for more than twenty years, and you are contemplating filing an action to seek title to the land by adverse possession.

In any event, you have decided to hire a professional land surveyor to locate and monument the property boundaries. Quite possibly, the surveyor will need to enter onto your neighbor’s land in order to perform the survey. Your neighbor may not be happy about this. He may allege that the surveyor is trespassing.

Does the surveyor have the right to enter your neighbor’s property? General Laws c. 266, § 120C, states:

“Whenever a land surveyor registered under chapter one hundred and twelve deems it reasonably necessary to enter upon adjoining lands to make surveys of any description included under “Practice of land surveying”, as defined in section eighty-one D of said chapter one hundred and twelve, for any private person, excluding any public authority, public utility or railroad, the land surveyor or his authorized agents or employees may, after reasonable notice, enter upon lands, waters and premises, not including buildings, in the commonwealth, within a reasonable distance from the property line of the land being surveyed, and such entry shall not be deemed a trespass. Nothing in this act shall relieve a land surveyor of liability for damage caused by entry to adjoining property, by himself or his agents or employees.”

G. L. c. 266, § 120C.

Essentially, so long as the landowner, his surveyor, or his lawyer, provides reasonable notice to the neighbor, then the surveyor can enter onto the neighbor’s land, near the property line, and the entry will not be a trespass. If you have received a letter stating that your neighbor’s surveyor needs to enter your land in order to make the survey, it would most likely be prudent to consent to the entry.

In one case involving a dispute over the use of an easement allowing the plaintiffs to traverse certain property of the defendant, utilizing a set of stairs to gain access to a local beach, the plaintiffs sought permission of the defendant to have their surveyor enter the defendant’s property for purposes of determining the feasible location and design for new stairs. When the defendant denied the plaintiffs’ surveyor permission to enter the property, the plaintiffs sought, and the Land Court entered a preliminary injunction which provided the surveyor with reasonable access to the defendant’s land.

In another case, the Land Court ordered that if the surveyor had to enter the boundaries of the defendants’ property in order to complete its field work, the surveyor could do so without hindrance, provided reasonable notice was given in accordance with G. L. c. 266, § 120C, and that violations would subject the parties to sanctions of $250.00 per incident.

Let’s say that you have already had your property surveyed. You staked or placed boundary markers on your land. To your dismay, your neighbor removes the stakes or boundary markers. Such conduct may entitle you to seek injunctive relief and/or money damages based on trespass.

In another case, the Supreme Judicial Court affirmed a permanent injunction which enjoined the defendants from interfering with any registered land surveyor even if the surveyor on the defendants’ property, and also from touching, altering, or interfering with any boundary marker or surveyor’s marker or any object that appears to be such a marker on or within twenty feet of the plaintiff’s property, even if it is on or believed to be on the defendants’ property. See Haufler v. Zotos, 446 Mass. 489, 508 n.35 (2006).

Additionally, under G. L. c. 266, § 94, the destruction of a boundary marker may constitute a criminal act. The statute states in pertinent part:

“Whoever wilfully, intentionally and without right breaks down, injures, removes or destroys a monument erected for the purpose of designating the boundaries of a . . . tract or lot of land, . . . shall be punished by imprisonment for not more than six months or by a fine of not more than two hundred dollars. Any person convicted under the provisions of this section shall, in addition to any imprisonment or fine, make restitution.”

G. L. c. 266, § 94.

If you need an attorney to represent you concerning a boundary line dispute, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.

The Rights of an Easement Holder to Improve a Right of Way or Paper Street in Massachusetts

By Robert Nislick

You are a Massachusetts homeowner. Your property abuts a street that may never have been paved. It could be a dirt road that is hard to navigate in wet weather and dusty and bumpy when it is dry.

Alternatively, your property abuts a street that exists only on paper. The way exists in a deed or on a plan. But in reality, no road has ever been built, and the area is completely covered with trees.

It is possible that you own land that is set back from a public way. In order to get to the property, you need to cross over a paper street, which is actually someone else’s yard.

Whatever the situation on the ground has been in the past, you want to improve the right of way. Assuming you have rights to use this way, what rights do you have as an easement holder to use and improve this right of way or paper street?

A holder of a right of way typically has the right to make it passable and usable for its entire width. See Guillet v. Livernois, 297 Mass. 337, 340 (1937). The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. The right exists even more clearly where without improvement the way is impassable and useless. See id.

Where an easement grants the “right to pass and repass” that right has been found to include all rights reasonably incidental to the enjoyment of the right to pass, including the right to make reasonable repairs and improvements to the right of way. See Farber v. Chatham Conservation Found., 56 Mass. App. Ct. 584, 589 (2002).

“Such reasonable repairs include paving the easement and such other improvements as would be consistent with principles of safety.” Barlow v. Chongris & Sons, Inc., 2 LCR 22, 23 (1994), aff’d, 38 Mass. App. Ct. 297 (1995). “Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement.” Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981).

Additionally, G. L. c. 187, § 5, states in part: “”The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways”. G. L. c. 187, § 5.

“Courts have found that private utilities fall within a broad spectrum of rights given to easement holders by G. L. c. 187 § 5.” Shawkemo Ducklands LLC v. Nantucket Planning Board, Land Court Miscellaneous Case No. 07 MISC 355356 (AHS), slip op. at 52 (Sands, J.) (Oct. 26, 2012). The installation of private septic systems and drainage systems have been deemed permissible pursuant to the statute.

Additionally, the statute applies to persons hold easement rights not only by deed, but also “when rights in a way arise by implication or necessity based on the parties intent,” and also to “an easement by estoppel.” See Post v. McHugh, 76 Mass. App. Ct. 200, 206 (2010).

About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk at the Land Court.  For more information, contact him at (508) 405-1238, or by e-mail.

The Doctrine of Tacking in Massachusetts Adverse Possession Claims

By Robert Nislick

In order for one Massachusetts landowner to establish title by adverse possession to land owned of record by another, the claimant must prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Frequently, a person who is adversely possessing another’s land may not be able to establish that he personally has used his neighbor’s land for twenty years. This might be because the adverse possessor only recently purchased his property. Alternatively, it might be because he inherited the property he now owns.

The twenty-year requirement is strictly construed. For example, in one case, the court ruled that a claim of adverse possession that continued for “nineteen years, eleven months, and five days” was insufficient, and did not bar the record owner from retaking possession of a disputed strip of land. See Hewitt v. Peterson, 253 Mass. 92, 93-94 (1925).

“[A]lthough the time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58 (1st Cir. 2004).

Even if the claimant has not personally used the land for twenty years, he may satisfy the requirement by tacking on “several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” See Ryan v. Stavros, 348 Mass. 251, 264 (1964). Privity exists when there is “some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one.” See id.

For example, the case of AM Properties, LLC v. J&W Summit Ave, LLC, Land Court Miscellaneous Case No. 13 MISC 479776 (AHS), (Sands, J.) (Jul. 2, 2015), involved a small strip of land located along a common boundary between the parties’ properties and two passageways to access the strip. The plaintiff purchased its property in 1999 from a trust, which had purchased the property in 1934. The trust had leased the property to a tenant in August 1993. The tenant soon began improving the strip on the defendant’s property.

The court noted that privity of estate exists between lessor and lessee. Additionally, the court noted that, “the adverse possession of the tenant maybe tacked to that of the landlord”. See Holmes v. Turner’s Falls Co., 150 Mass. 535, 547 (1890). Therefore, the court found that plaintiff could tack its use of the strip onto that of the trust for purposes of establishing adverse possession. Accordingly, even though plaintiff itself was adversely possessing defendant’s strip for less than twenty years, it was able to add on, or tack, its predecessor’s tenant’s use onto its claim.

In Perry v. Nemira, Land Court Miscellaneous Case No. 11 MISC 457157 (AHS), (Sands, J.) (Jan. 15, 2015), plaintiff acquired title to his property in early 1996. Plaintiff was required to demonstrate adverse use since 1991. Plaintiff proffered no evidence to suggest that his predecessors ever adversely possessed the disputed area. Moreover, plaintiff’s predecessor in title had essentially abandoned the property in late 1994 when she was incarcerated. Thus, the court found that even if the plaintiff’s predecessor intended to adversely possess the disputed area, there was a break in adverse use from late 1994 to early 1996. This prevented plaintiff from establishing continuous adverse use for the requisite twenty-year period.

In Giombetti Clue Props., LLC v. DiFronzo, Land Court Miscellaneous Case No. 10 MISC 443972 (HMG), (Grossman, J.) (Nov. 7, 2014), plaintiff sought a prescriptive easement over a portion of a paved driveway that encroached onto the neighboring property. The defendant argued that plaintiff’s claims failed because one of plaintiff’s predecessors sought permission to pave the driveway. The court noted that the plaintiff could not seek to tack its own adverse use onto a period of adverse use by an earlier predecessor, thereby “leap-frogging” over a period of permissive use.

If you have a claim or need to defend against a claim for adverse possession or prescriptive easement, contact Robert Nislick, a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Getting and Removing a Lis Pendens in Massachusetts

 By Robert Nislick

When Massachusetts real estate owners are involved in land disputes, they frequently want to know how getting a lis pendens may help them. A plaintiff may seek to obtain and record a memorandum of lis pendens on a defendant’s property when instituting a proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon. See G. L. c. 184, § 15 (a). A lis pendens often provides a party with leverage against his litigation opponent. Since a recorded memorandum of lis pendens essentially tells the world that a controversy exists concerning a piece of land, a plaintiff can usually place his rival at a practical disadvantage by recording such an instrument. Lenders and buyers will naturally have reservations about obtaining an interest in land, where they will be bound subsequently by the court’s judgment in the underlying controversy.

“A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that ‘affects the title to real property or the use and occupation thereof.’”[1] “[T]he fundamental remedial purpose of the statute [is] to ‘ensure that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.’”[2]

From the perspective of someone who may want to buy a piece of real estate that people are presently fighting about, a memorandum of lis pendens gives the innocent prospective buyer vital information that he might not otherwise have. Without a recorded memorandum of lis pendens, a buyer may unwittingly buy his way into a lawsuit. The memorandum of lis pendens protects the innocent buyer by informing him, ahead of time, that the seller may not be able to convey good and clear record and marketable title, or that someone is asserting a claim to that property.

Let’s say you are the plaintiff, the person who is asserting a claim to the other person’s property. Perhaps you are asserting a claim of title by adverse possession against your neighbor. Similarly, you may have acquired a prescriptive easement over your neighbor’s property. It might be that your neighbor is blocking your access to a right of way.

Alternatively, you may have a binding offer to purchase real estate or purchase and sale agreement. The seller is refusing to consummate the transaction and you want to sue him for specific performance. These are various situations in which a plaintiff may seek a lis pendens.

A party seeking a memorandum of lis pendens should reasonably determine that his claim “affects the title to real property or the use and occupation thereof or the buildings thereon”. See G. L. c. 184, § 15 (a).

If it does, then the plaintiff can file a motion for a finding and endorsement of a memorandum of lis pendens. A party seeking a memorandum of lis pendens should follow carefully the procedures for obtaining a lis pendens set forth in G. L. c. 184, § 15 (b), which include filing a verified complaint, including a certification that “the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom”, and naming all owners of record as defendants.

“Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum.” G. L. c. 184, § 15 (b), third sentence (emphasis added).

Under certain circumstances, a plaintiff may move for an ex parte motion for memorandum of lis pendens. This means that the plaintiff is asking the court for relief without the other side having notice or being present. “If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon.” G. L. c. 184, § 15 (b), fifth sentence.

A defendant whose land has been encumbered by a memorandum of lis pendens can file a special motion to dismiss, a statutorily created remedy which is designed to expeditiously remove an unjustified lis pendens, and to dismiss frivolous claims brought in connection with the acquisition of such a lis pendens. See G. L. c. 184, § 15 (c). The General Laws also provides that the court award an aggrieved party costs and attorney’s fees in connection with the grant of a special motion to dismiss. The statutory mechanism for filing a special motion to dismiss a lis pendens, which was enacted by St. 2002, c. 496, and codified at G. L. c. 184, § 15.

“General Laws c. 184, § 15, provides ‘a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens.’”[3] A party can “move for dissolution of the lis pendens and seek dismissal of the underlying claim if he or she believes that such claim is unjustified and frivolous, upon an expedited hearing and with entitlement to costs and reasonable attorney’s fees if successful. See G. L. c. 184, § 15(c), added by St. 2002, c. 496, effective January 31, 2003. . . . A litigant abused by bad faith claims and the use of lis pendens for their prosecution is far from remediless.”[4] “Under G. L. c. 184, § 15 (c), a party who believes that a claimant’s action or claim supporting a lis pendens is frivolous may file a special motion to dismiss.”[5]

“[T]he statute creates the special motion to dismiss as a way for the defendant to go beyond clearing the record title of the memorandum, and to gain dismissal of the entire claim. . . . [T]he special motion to dismiss deals with the sufficiency of the claim as a legal and factual matter, testing for frivolity by the distinct standards the statute sets out. The special motion to dismiss is considered by the court, if necessary, with the benefit of affidavits and other evidence. And in the case of allowance of a special motion to dismiss, the court is required by the statute to award ‘the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.’”[6]

Attorney Robert Nislick is a Massachusetts real estate attorney who practices in Superior Court and Land Court. Contact him today for more information.

[1] McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008), quoting Wolfe v. Gormally, 440 Mass. 699, 700 (2004).

[2] Wolfe v. Gormally, 440 Mass. 699, 706 (2004), quoting Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 562 (1981).

[3] McMann, 71 Mass App. Ct. at 519, quoting Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005).

[4] Powell v. Stevens, 69 Mass. App. Ct. 87, 90 (2007).

[5] Faneuil Investors Group, LP, v. Board of Selectmen of Dennis, 458 Mass. 1, 2 n.2 (2008).

[6] Sapera v. VBDC, LLC, Land Court Miscellaneous Case No. 325720 (GHP) slip op. at 3 (Piper, J.) (Apr. 6, 2009).

Condominium Unit Owners Cannot Alter Common Areas Without Consent

By Robert Nislick

You own a unit in a Massachusetts condominium and serve on your association’s board of trustees. Your board takes seriously its responsibilities to maintain, repair, and protect the condominium property. One day, the board of trustees learns that a unit owner has altered, or will imminently alter, the common areas and facilities of the condominium.

The unit owner has decided to renovate his unit. In so doing, he makes changes to the common areas and facilities. Perhaps he wants a larger living room window. In order to install the new window, he cuts a hole in the building envelope. Perhaps your condominium building is a converted loft. It occurs to the unit owner that maybe he could have higher ceilings. He decides to remove the finished ceiling and joists in order to expose the space above. Perhaps he wants to make renovations within his unit. He applies to Boston Inspectional Services Department Building and Structures Division for a permit. In order to receive the permit, he needs to add fire sprinkler heads and tap into the building’s fire alarm system. Perhaps your condominium consists of townhouses. The unit owner decides that he needs more storage and erects a shed on the condominium grounds.

These are just a few examples of how condominium common elements can be altered or encroached upon by a unit owner. The unit owner’s motivation may be innocent, nefarious, or somewhere in between. His bottom line is that he feels that he can do whatever he wants with his property. He never asked for and never received approval from the condominium trust before taking these actions.

It is well established under Massachusetts law that management and control of the common areas is vested in the organization of unit owners, i.e. the condominium trustees. When a person purchases a condominium unit, although he owns the fee interest in his individual unit, he does not get the right to change, take away from, or encroach upon the common elements.

Under certain circumstances, the trustees may choose to grant a unit owner the right to alter or use common areas, and if that is the case, the trustees may grant an easement, or designate an exclusive-use limited common area. If that is the case, then both the board and the unit owner should make sure to carefully follow the requirements of G. L. c. 183A and the governing documents for the condominium when formalizing such an arrangement. Both the board and the unit owner would be well advised to seek their own counsel to negotiate and draft such any instruments that might be needed.

What should the condominium trustees do when they believe that a unit owner has altered, or may imminently alter, the common areas and facilities without board approval?

It is important for the board to inspect the unit as soon as possible. The master deed should provide the trustees with the right to inspect the unit on reasonable notice. The trustees and the condominium’s property manager will want to take photographs. If the unit owner refuses access, the board may view such a refusal as a failure by the owner to abide by the condominium documents. It may be appropriate to levy a fine against the unit owner until he provides access. If the trustees still cannot access the unit, then the board should probably file a complaint in Superior Court and seek a preliminary injunction which orders the unit owner to provide access to the trustees.

If the trustees discover that the unit owner has altered the common areas, then the trustees should take action to compel the unit owner to restore the premises to their original condition. The trustees are likely justified in taking a firm stance against the unit owner. The board cannot tolerate action by the unit owner which may jeopardize the soundness or safety of the condominium building and its residents. If a unit owner’s construction project places public safety at risk, then the board really has no choice but to act to abate this problem immediately.

Attorney Robert Nislick is a Massachusetts condominium attorney who represents condominium trustees and unit owners. Contact him today for more information.

How to Interrupt a Claim of Adverse Possession and Prevent the Acquisition of an Easement in Massachusetts

By Robert Nislick

You are a Massachusetts landowner. You may have recently purchased your property. Maybe you have owned the land for a long time. One day, you realize that your neighbors are doing something that irritates you. Perhaps they are parking cars on your property. Possibly they are crossing over your property. Maybe they have erected a shed on your property. They may even be mowing the grass or cutting down trees on your land to use for firewood.

Whatever the neighbors are doing, it is annoying and you want them to stop. After all, this is your land, not theirs. You have a survey done and it is clear that the neighbors are encroaching on your property. You discuss it with them. They tell you to pound sand. Even worse, they tell you they have a claim for adverse possession or a prescriptive easement against you.

You are not exactly sure what that means, but it sounds intimidating. The main difference between adverse possession and a prescriptive easement can be understood this way: Adverse possession gives them ownership of your land, whereas a prescriptive easement gives them the right to use your land.

Questions swirl around in your head. Can they really take my land? Are they blowing smoke? What can I do to stop them? How can I protect my property?

If you in the midst of a land dispute, contact Robert Nislick, a Massachusetts attorney and former Land Court law clerk, to discuss your rights and remedies.

In reality, it is difficult to establish a claim of adverse possession. “A party claiming title to land through adverse possession must establish actual, open, exclusive, and non-permissive use for a continuous period of twenty years.”[1] “If any of these elements is left in doubt, the claimant cannot prevail.”[2]

It is also difficult to establish a claim of prescriptive easement. “Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years.”[3] “As with adverse possession, the use must be open, notorious, continuous, and adverse.”[4] “No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.”[5]

In any event, the true owner of the property should not sit idly by. It is particularly urgent for the landowner to do something to cut off the accrual of the neighbor’s claim where close to twenty years have passed. “To stop the running of the statute, the owner’s entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption.”[6]

Usually, this means filing a lawsuit against the adverse possessor. “In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land.”[7] “The filing of a lawsuit stops the period of adversity since the court is charged with determining the state of the title at the time the action is filed.”[8]

The landowner may also seek an injunction to force the neighbor to remove encroachments from the property. “In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land . . . .”[9]

One thing a landowner may want to do to prevent someone from acquiring a right of way or other easement in or over his land, is to post, serve, and record a notice to prevent the acquisition of easement by custom, pursuant to G. L. c. 187, § 3. Under this statute, a person “may give public notice of his intention to prevent the acquisition of such easement, by causing a copy of such notice to be posted in a conspicuous place upon the premises for six successive days, and such posting shall prevent the acquiring of such easement by use for any length of time thereafter; or he may prevent a particular person or persons from acquiring such easement by causing a copy of such notice to be served upon him or them . . . .”[10]

“While the posting of such a notice upon the land is an act of ownership and may constitute evidence bearing upon the continuity of an adverse possession . . . it does not necessarily, as matter of law, interrupt such possession.”[11] Very few cases have discussed whether the posting of a notice pursuant to G. L. c. 187, § 3, interrupts the accrual of an adverse possession claim, rather than simply the accrual of a prescriptive easement. The most prudent course of action for the landowner is to file suit against the adverse possessor before twenty years of actual, continuous, open, exclusive, and non-permissive use pass.

If you are embroiled in a land dispute with your neighbor, call Robert Nislick, a Massachusetts real estate attorney, today.

[1] Totman v. Malloy, 431 Mass. 143, 145 (2000).

[2] Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968).

[3] Stone v. Perkins, 59 Mass. App. Ct. 265, 266 (2003).

[4] Id.

[5] G. L. c. 187, § 2.

[6] Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 541-542 (1996).

[7] Id. at 542 n.8.

[8] Galinat v. Charlton, Land Court Miscellaneous Case No. 399614 (KCL), slip op. at 4-5 (Long, J.) (Jun. 8, 2009).

[9] Xifaras v. Andrade, 59 Mass. App. Ct. 789, 794 (2003).

[10] G. L. c. 187, § 3.

[11] Rothery v. MacDonald, 329 Mass. 238, 241 (1952).

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).

When an Easement Holder Tells You to Get Out of the Way – Understanding the Landowner’s Right to Use His Own Land

By Robert Nislick

You are a Massachusetts landowner. Your neighbor has an easement to use your land.  You want to use your own land too.  Your neighbor sues you in Land Court or Superior Court. She seeks a declaratory judgment and an injunction to prevent you from using the land subject to the easement. She claims that she has a right to use your land, so you cannot. It is quite possible that your nasty neighbor should lose. Massachusetts courts interpret broadly one’s right to use and enjoy his or her land.[1] Generally, the servient owner may make any use of his land that is not inconsistent with the easement and that does not materially interfere with the easement’s use.[2] A servient owner retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner.[3] It is a long-established rule in the Commonwealth that the owner of real estate may make any and all beneficial uses of his property consistent with the easement.[4] Although servient owners enjoy rights to use their land, they may not engage in activities that are inconsistent or materially interfere with a dominant owner’s easement.[5] The general rule in determining whether a given proposed use falls within the activities forbidden to the owner of a servient estate is that such an owner is entitled to make such use of the estate as is consistent with the easement[6], or for all purposes which are not inconsistent with the easement[7], or which do not materially interfere with its use.[8] The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights.[9] Easement disputes can be extraordinarily complex and the stakes are high.  Attorney Robert Nislick is an experienced litigator of easement disputes, and formerly served as a law clerk at the Massachusetts Land Court.  If you are having an easement dispute with your neighbor, contact Robert Nislick today.

[1]Rattigan v. Wile, 445 Mass. 850, 858 (2006). [2] Sullivan v. Dart, 78 Mass. App. Ct. 1120, 2011 WL 182058, 2 n.7 (2011). [3] Patterson v. Paul, 448 Mass. 658, 666 (2007). [4] M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91 (2004). [5] World Species List-Natural Features Registry Institute v. Reading, 75 Mass. App. Ct. 302, 310 (2009). [6] J. S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 (1923). [7] Ampagoomian v. Atamian, 323 Mass. 319, 322 (1948). [8] Merry v. Priest, 276 Mass. 592, 600 (1931). [9] Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363, 365 (1979).

Adverse Possession in Massachusetts

By Robert Nislick

Many of us wish to live in a world with friendly neighbors, and in a house with freshly painted white picket fences, and ample and accessible parking.  When you have bad neighbors, the dream can quickly turn into a nightmare.  One day you learn that your neighbors’ fence is over the property line.  Perhaps you have realized that they are parking on your land.  You try to mention it politely but it does not go well.

Gone is the welcome wagon that greeted you when you came to town.  Now you are going off the rails on a crazy train.  Your neighbors say that their fence has been there forever.  Although your survey shows the actual boundary, they don’t care.  They are not moving the fence.  Even worse, they tell you they now own your land.  How can that be possible?

Under the law of adverse possession, a person can actually cut off the ownership rights of the true owner of land.  Whereas someone might have been merely a trespasser, if he makes actual uses of the land of another, openly, notoriously, adversely, exclusively, nonpermissively, and continuously for a period of twenty years, the true owner may find himself out of luck.  A court could rule that the trespasser has now become the owner, and the person who was the owner has lost his ownership of the land.

If you find yourself in a dispute with your neighbor, you should contact Robert Nislick, a Massachusetts real estate lawyer, based in Framingham. I can help you analyze the situation and determine what claims you may have and whether they have any valid claims against you.  If someone is adversely possessing your land, there may be several things you can and should do to prevent the loss of your land and to keep your neighbor off your property.