Any landowner contemplating the grant of a new easement over his property should consider whether he wants the grantee to assume a portion of the property taxes. By statute, property taxes are usually assessed to the landowner. Therefore, unless there is an agreement with the easement holder (dominant estate) stating otherwise, the obligation to pay property taxes-including for the easement portion of the property-will continue to lie with the landowner even after the grant and recording of the easement.
The proper party to receive an assessment of property taxes is found under M.G.L., c. 59, § 11, which provides that
[t]axes on real estate shall be assessed, in the town where it lies, to the person who is the owner . . . , and the person appearing of record, in the records of the county . . . where the estate lies . . . shall be held to be the true owner," or "whenever the commissioner deems it proper he may, in writing, authorize the assessment of taxes upon real estate to the person who is in possession thereof . . . and such person shall thereupon be held to be the true owner thereof for purposes of this section.
See, e.g., Donovan v. City of Haverhill, 247 Mass. 69, 71 (quoting § 11). Cf. Mahony v. Bd. of Assessors of Watertown, 362 Mass. 210 (1972). Moreover, there is no statute or common law doctrine that creates or imposes a contrary obligation upon the easement holder to pay property taxes (pro-rated or otherwise) for his use of the servient estate.
Many landowners are content with continuing to assume the entire portion of real property taxes assessed to their land, especially if the grantee's use will be minimal. But for those owners who would like the grantee to assume at least a portion of the property taxes-such as a pro rata share based on the size of the easement area in relation to the total lot area-then the easement agreement or deed should expressly provide for the easement holder's obligations in this regard. Provisions within the agreement should, at minimum, include the amount of the easement holder's share of taxes (typically expressed as a percentage of total assessed taxes), how the easement holder will receive notice that payment is due, the timing and method of payment, and how penalties for late payments will be addressed.
For those landowners who are unsure about property tax obligations for existing easements that already burden their property, they should check their and the easement holder's deeds, as well as any other easement agreements that may have been entered into within the chain of title. If the property tax obligation was not expressly addressed in these instruments, then the landowner typically remains responsible for all assessed taxes. Moreover, any previous oral agreements related to property taxes may face a challenge under the statute of frauds. However, some easement instruments are drafted in a way that renders them open to interpretation about whether the easement holder may share some responsibility for paying property taxes, and thus further analysis by legal counsel should be considered.
Written by Kristen M. Ploetz, Blog Editor
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.