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The law of prescriptive easements allows a non-owner of a parcel of real estate to obtain title rights to use the property of another after a period of time. Specifically, in Massachusetts an easement by prescription may be obtained by a non-owner’s “uninterrupted, open, notorious and adverse use for twenty years.” Ryan v. Stavros, 348 Mass. 251, 263 (1964).
The prescriptive easement theory is very similar to that of adverse possession, except that the party obtaining the prescriptive rights to use another’s land need not have used the land exclusively as is required for adverse possession. Thus, a non-owner using a private roadway owned by another to access the non-owner’s property can establish a prescriptive easement for such use in spite of the owner’s simultaneous use of the roadway.
This theory of law is well settled in Massachusetts, or so we thought. A recent Land Court case, upheld by the Court of Appeals, has been indicted by many attorneys in the legal community as having muddied the waters of what was relatively clear law in the area of prescriptive easements. In Houghton v. Johnson, 71 Mass.App.Ct. 825 (2008), plaintiffs appealed a decision by Land Court denying their claims of prescriptive easements over the beach area owned by the defendant land owner.
Plaintiffs claimed that they had used the beach, including that portion of the beach immediately adjacent to defendant’s home, seasonally every year, openly, notoriously and adversely for more than twenty years. Plaintiffs pointed to a handful of typical beach-types uses (swimming, wading, building sand castles, lighting campfires, and hosting of a wedding and fireworks display) as evidence of their acquired rights in the property.
The court found in favor of the property owner, holding that the collective actions of the beachgoers was not limited to the defendant’s property (i.e. they used the entire beach) and was not sufficiently notorious (i.e. it did not put the defendant on notice that there would be a potential claim against her property).
One legal commentator has suggested that this ruling has added two additional requirements to the law of prescriptive easements beyond those of continuous, open, notorious and adverse use. Namely, the suggestion is that the court now requires “separate and exclusive use” and “explicit notice” in addition to the traditional requirements.
The first alleged additional requirement is “separate and exclusive use.” It is important to note that “exclusive” in this context is not the same as the adverse possession requirement for exclusive use. In this prescriptive easement ruling, exclusivity relates not to the person (as in, Person A is the only one to use the property), but to the property (as in, Person A’s use is restricted exclusively to the subject property). However, despite the suggestiveness of the court’s language, here, it doesn’t appear that anything has been substantively changed.
Prescriptive easements are individual rights in another’s property. The court rejected the plaintiffs’ contentions that they collectively obtained beach rights over the defendant’s property. This makes sense. If Person A uses your property for beach purposes one week, Person B the next, Person C the next, and so on, it is difficult to see how any of these separate parties have established the required continuous use necessary to create a prescriptive easement, especially if A, B and C are using different portions of the beach in their “off weeks.”
This behavior looks more like haphazard trespassing over the private beach areas as a whole as opposed to an attempt (intentional or otherwise) to acquire rights in a particular portion of the beach. The court’s suggestion that the erection of a permanent structure of some sort merely illustrated one manner in which use of the property exclusively might be established (i.e. by having a set place to return on each visit to the beach), not an additional requirement of the existing law.
The second alleged requirement was “explicit notice.” Again, this appears to be more a clarification of degree of notorious use required than any new requirement. In the Houghton case, several of the plaintiffs were friends of the defendant’s predecessor in interest. Their use of their friend’s property raised questions of implicit or tacit permission to use the beach, which, since permission defeats all claims of adverse possession or prescriptive easement, was a significant factor.
This, too, makes sense. If friends have an unexpressed understanding that an open invitation exists for them to come use the beach, their presence on the beach would likely raise no concern in the property owner of a potentially adverse claim. Something more, in this case “explicit notice,” was required by the court to overcome that presumption of permissive use. The plaintiffs had to be so overt in their use of the beach (again, possibly, by erection of a permanent structure) that there could be no doubt that the true owner was on notice as to the adversity of their use.
This lesser interpretation of the significance of Houghton appears to have been supported by the Land Court’s decision in Needel v. Mavrelion (not reported, June 6, 2008). In Needel, the plaintiffs sought to establish a prescriptive easement for access to their beach house. The defendants sought to counter plaintiffs’claim for a prescriptive easement using the reasoning in Houghton, but the court distinguished the two situations on the bases discussed above. First, the plaintiffs were separate (individual) plaintiffs who were seeking to establish a claim of right over an exclusive (discrete) portion of the defendant’s property. Second, the plaintiffs had no relationship with defendants or defendant’s predecessors in interest which would have given rise to any inference of implied permission.
At the end of the day, continuous, open, notorious and adverse use for twenty years remain the touchstones for establishing prescriptive easements in the Commonwealth. Houghton assists this structure; it does not subvert it. Where there is non-discrete use of the subject property for general purposes, Houghton provides clarification that is helpful on the issue of continuity. Where there are concerns about permission arising out of the relationship of the claimants, Houghton provides clarification that is helpful on the issue of notoriety. Massachusetts law in this regard remains intact. |
