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 rob@nislick.com.

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).

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).