The age of Massachusetts lends itself well to preservation easements. These kinds of easements, also referred to as preservation restrictions, create tax and other benefits for owners of historic properties in exchange for certain restrictions that will protect and preserve the historical and architectural significance of relevant structures and/or landscape features.
On February 8, 2013, the Supreme Judicial Court another land use/real estate decision in White v. Hartigan, 464 Mass. 400 (2013), a case on direct appellate review from the Land Court. At issue in the case (a quiet title action) was whether the plaintiffs owned a fractional interest in a beach located on Martha's Vineyard, or, alternatively, whether they had acquired a prescriptive easement to use the beach and the land leading thereto.
Easements come up a lot in our practice at Phillips & Angley (for a recap of easement basics, see our April 19, 2012 post). When we receive a call involving an easement, the easement, or right of way, is typically the focus of the dispute, but sometimes an easement itself can be the vehicle for resolving the controversy, particularly in adverse possession cases. This post concerns a change in the law of easements, effected by the Supreme Judicial Court in 2004, which has created new flexibility for property owners in regulating rights of way and defending against easement claims over their properties.
Easement agreements are used to address a wide array of issues and interests of landowners including resolving property disputes, clarifying property rights between neighbors or granting new rights of access. Common to all however, is the fact that one person's land will be used by another party or person or sometimes many parties and persons. Right of way agreements that allow others to pass and repass over the land of another often raise questions about the liability of the landowner for loss or injury occurring to the easement holder or third parties who might use the easement-whether with permission or without. What then are the essential duties involved in this relationship and what can be done to mitigate exposure to landowners? As we will see, the relationship between the landowner (the owner of the servient estate) and the easement holder (the owner of the dominant estate) and various third parties is governed by competing legal propositions.
A few months ago we briefly covered prescriptive easements in a general land use post about different types of appurtenant easements.
Earlier this month, the SJC remanded an interesting easement case back to the Land Court and ordered the Land Court judge (Piper, J.) to take a second look at the width of the easement that he had laid out to the extent that it conflicted with local subdivision road regulations.
Many people may not realize that in Massachusetts, "[a]n eminent domain taking in fee simple extinguishes all other interests in the subject property. In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate." New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374, 376 (1992). This means that if an individual has easement rights over a parcel of land that is ultimately taken by eminent domain, those rights are terminated once the taking occurs.
With summer weather upon us, beach and shoreline access is a timely topic.
Most people are familiar with the concept of easements. As defined by Black's Law Dictionary (7th ed.), an easement is
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.