Easements Affect Real Estate and Property Owners
An easement is an interest in real estate that affects both commercial and residential property owners in a fundamental way. Given the complexities of Massachusetts easement laws and principles, it is very important to contact the Boston-based real estate attorneys at Calabrese Law Associates who have experience working with easements. Easement and zoning issues tend to arise together so there are many situations where the firm’s zoning litigation attorneys in Boston can be helpful as well.
- For example, you may need to expand your business location beyond the existing boundaries to offer additional parking. A neighboring business may agree to an easement and thus, allow you to expand parking onto their lot. However, as time goes on your neighbor may change their mind and ask you to no longer use their lot for additional parking. When these types of dispute arise our firm’s real estate zoning attorneys are there to help clients resolve the situation in a smart and advantageous matter.
- For example, you may decide to build a parking lot, balcony or new building on your own commercial property. Yet, even if you are constructing within your own property boundaries, your new expansion may affect your neighbor’s use of their real estate and lead to a costly and stressful legal dispute. Working with the land use attorneys at Calabrese Law Associates before commencing such a construction project will help prevent these types of legal problems from arising. Our firm would review your building plans and related construction documentation to ensure that your planned construction does not encroach on the neighboring lot and does not violate zoning or building code regulations.
In these examples and in many other situations, our firm’s real estate attorneys can push for an amicable resolution to a disagreement and/or seek to have an easement granted.
There are two types of easements, “Affirmative” and “Negative.”
An “affirmative” easement gives the holder of the easement the right to do something on another’s land. (e.g. lay utility lines, access their land-locked property, etc…) A negative easement allows the holder of the easement to prevent the landowner from doing something that would otherwise be permissible (for example, to construct a building that blocks the easement holder’s scene view, performing any act that may affect the structural integrity of the easement holder’s house, redirecting a natural water stream away from the easement holder’s pond, etc…) Moreover, the application (“scope” or “purpose”) of the easement is determined by its terms of grant or condition that created the easement. The scope/purpose of an easement cannot be expanded or changed by the person holding the easement. Simply using the easement for something outside of its defined purpose does not change or eliminate any limitations associated with the easement.
Easements are created in a variety of ways:
- Prescription – An easement may be acquired by satisfying the following elements of adverse possession.
- Continuous use for the statutory period
- Open/notorious use
- Actual Use
- Hostile use – a use without the consent of the owner of the land affected by the easement.
- Permission defeats the “hostile” element and thus, precludes creation of an easement by prescription.
- Implication – An easement is implied from an existing use if:
- the previous use was apparent; and
- the parties involved expected that the easement would continue; and
- the use of the easement is reasonably necessary to the use and enjoyment of the land owned by the easement holder.
- Necessity – (land-lock setting) is an easement of right of way is implied by necessity if the seller of property sells a portion of his land that has NO way out EXCEPT over part of the seller’s remaining lot. In Massachusetts, a necessary easement is only created if a buyer of land-locked property has no way of accessing their land without an easement.
- Grant – An easement that will last more than one year, which is in writing and complies with the formal elements of a deed. Written evidence of an easement is a deed of easement.
This is a diagram of a necessary easement:
Easements can be terminated in a number of ways:
- Estoppel – the easement holder is stopped/barred from enforcing the easement when the owner whose property that is affected by the easement materially changes their position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.
- Necessity – An easement terminates when the need for the easement (the “necessity”) no longer exists. However, an easement that is expressly granted and attributable to a necessity, will NOT automatically terminate when the necessity ends (for example, an easement granted to access land-locked property at the time of purchase. If road access becomes available to the land-locked property sometime after purchase, the original easement will not automatically terminate).
- Destruction – The destruction of the land affected by the easement will terminate the easement UNLESS the destruction was through willful conduct of the land owner.
- Condemnation – The condemnation of the land affected by the easement through eminent domain terminates the easement.
- Release – A written release given by the easement holder to the owner of the land affected by the easement will terminate the easement.
- Abandonment – An easement holder is deemed to have “abandoned” their easement if they demonstrate by physical action an intent to NEVER use the easement again.
- Merger Doctrine – Generally, an easement is terminated when the ownership of the easement and ownership to the land affected by the easement become owed by the same person.
- Prescription – The interference with any element necessary to acquire an easement by prescription will terminate the easement.
Related concepts such as land use and zoning can also affect how your land is used — and what your neighbors can do to impact your property. In many situations, this complex area of the law will require consultation with an experience real estate attorney.
There are many reasons why you should need to consult with our firm’s boston-based real estate easement attorneys:
- You are purchasing a new property (either commercial or residential) and need to know whether any easements could affect your use of the property.
- There is an existing dispute involving an easement issue.
- There is a zoning or land use dispute with your landlord or neighbors.
- You wish to expand a commercial building to accommodate your growing business without affecting surrounding properties or infringing upon their boundary lines.
When you buy your property, you may assume you can do whatever you like with it because it belongs to you. However, you will quickly realize there many laws and regulations that will affect your use of your real estate. All but the most minor development and renovation projects will require paperwork and approval. In addition, the development and actions of your neighbors can affect your own ability to enjoy your property. Whether you wish to avoid disputes or whether you need assistance in addressing an ongoing disagreement about land use, speaking with a qualified attorney can help you secure the information and support you need to move forward with confidence.
If you’d like to speak to a real estate easement attorney in Boston, contact Calabrese Law Associates for a free consultation. Our legal team is the legal representation and advisor of choice for many local businesses because we have an experienced team and a reputation for high-quality legal service.