Sherwin Law Firm Succeeds in Case of Easement by Prescription

I’m pleased to announce that I prevailed in a case last week involving an easement by prescription for residential property.  This case involved many interesting areas of Massachusetts property law.

Overview of the Case

My clients were homeowners who, for the past thirty years, had used a nearby paved lot by their home to park their cars.  Along with parking their cars, they regularly maintained the lot and performed improvements on the walls that surrounded the property.

Several years ago, someone else purchased this parking lot and demanded that my clients pay rent to use it.  My clients, who spent years using the lot as their own, were understandably upset about this turn of events and sought my legal advice on what could be done about this problem.

My Approach

I filed a lawsuit against the new owner of the property seeking a declaratory judgment that my clients were entitled to permanent use of the parking lot.  A declaratory judgment is a court order to determine one’s rights under the law.  A court order like this is needed in a case where the goal of the lawsuit is not money, but rather, a legal declaration from a court.

In this lawsuit, I asked for an easement by prescription for my clients.  An easement by prescription is a permanent right to use someone else’s land.  An easement by prescription requires the following:

  • The use of the property must be adverse for at least twenty years.  This  means that the person seeking an easement by prescription must show that the owner of the subject property never gave them permission to use the property.
  • The use of the property must constitute actual use.  This means that the person using the property used it in a way that property of that type is commonly used.
  • The use of the property must be open and notorious.  Simply put, the use of the property must put the actual owner on fair notice that someone else is using his or her property.

An easement by prescription is similar to adverse possession, which is a legal claim for permanent ownership of property that is used for twenty years.  The critical difference is that a claim of adverse possession requires a party to prove that their use of the property was exclusive, and  that the record owner of the property was “cut off” from the property.

An easement by prescription does not require proof of exclusive use.  Easements by prescription are commonly used for cases involving the right to use a road for access to land and for beach and waterfront rights (common in Cape Cod and other coastal areas of Massachusetts).

Outcome 

As with all claims of adverse possession and easements by prescription, the “devil is in the details.”  Proving one of these claims requires an understanding of how the subject property was used for the past twenty years, which often requires going through extensive land records, photographs, and other evidence related to the property’s use.  A trial for one of these cases requires that this evidence be presented to the Court in a way that coherently explains the required elements above.

In the end, the work on this case was worth it: following a trial, the Court agreed with our claim, and granted my clients a permanent easement for parking.

Lessons for Property Owners In Similar Cases 

Claims for adverse possession and easement by prescription may, at first blush, appear to be trivial, with neighbors fighting over small parcels of property.   In actuality, these disputes concern incredibly important matters.  Here, parking access was essential to my clients, who lived in a city that had limited off-street parking, making this easement by prescription a huge benefit to my clients’ home.

If you find yourself in a dispute involving the use of property, contact me for a consultation.  A lesson of this case is that long standing use of property, under the right conditions, can allow for a permanent right to access or ownership .  An experienced real estate attorney can help you decide if one of these claims is worth pursuing.

5B Affidavits

Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property.  G.L. 183, § 5B provides for the following:

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property.  5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property.  I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records.  A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.

5B affidavits, importantly, must be certified by an attorney.  The law does not allow a non-attorney to record one of these affidavits on their own.

While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used.  Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit.  A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to.  An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.

If you find yourself in a real estate dispute, contact me for a consultation.

Boundary Line Disputes

Boundary Line Disputes

Boundary line disputes are, arguably, one of the most contentious areas of law.   Understanding the right approach to dealing with boundary line disputes can make a real difference in effectively resolving these problems.

Determine Your Property Boundaries

The first step in resolving boundary line disputes is to determine your property boundaries.  Many times, the boundary line for property is not where the owner believes it is.  Even though fences and other physical structures may, informally, be considered the perimeters of property, the actual property lines may be in a different location.  Determining property boundaries is generally done by a survey or plot plan, which is prepared by a licensed surveyor.  A surveyor will review the land records for the subject property (found in the appropriate registry of deeds) and state the exact location of the property’s boundaries.

A survey or plot plan, however, is not always the final authority for determining a land boundaries.  Massachusetts, like most other states, allows for adverse possession of real property.  Adverse possession is a legal claim where the continuous use of property by a non-owner allows that user to legally acquire the property.  As such, even if the survey or plot plan states that disputed property belongs to a particular person, an adverse possession claim may allow a non-owner to become the property’s record owner.

Attempt to Resolve the Matter Amicably 

Property owners should always attempt to resolve boundary line disputes without going to court.  Court cases, while sometimes necessary, can be long and expensive.  Many times, boundary line disputes can be worked out amicably, which is to everyone’s benefit.  Mediation, where the parties meet with a neutral party to discuss the dispute, can be a useful process for these matters.

Although it is beneficial to try and settle these matters out of court, it is still a good idea to speak with an attorney for help with these negotiations.  A lawyer can help advise you of your rights and determine the best way to proceed.

Seek Court Action If A Resolution Cannot Be Found

For boundary line disputes that cannot be resolved amicably, court action may be necessary.  Massachusetts law allows property owners to get a court declaration on the ownership of property, and a court order preventing a party from using a portion of property, if necessary.

Unlike many states, Massachusetts has a court that specializes in property cases: Land Court.  Land Court is a popular court for these types of cases, with judges and staff that are familiar with these matters.  In addition to Land Court, these cases can also be brought in Superior Court or federal court.

If you find yourself in need of a court case for a boundary line dispute, contact a lawyer for assistance.  Preparing and filing a lawsuit for boundary line disputes can be tricky, and having an experienced attorney on your side can make all the difference in getting the results you need.