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Gated Easements

Some landowners have private roadways or footpaths existing on their property (the servient estate) that serve as easements or rights of ways for use by other individuals (easement holders). Often these passageways have existed for many years. They can range from simple, meandering dirt foot paths or driveways to paved or gravel roads.

While the easement holders have bona fide authority to pass and re-pass over these passageways as a result of a deeded easement or other established rights, for all others such use is considered a trespass. Unfortunately, it is often a common practice for unauthorized persons to use these passageways as shortcuts to access other roads, beaches or other parcels of land. This kind of use is not only unwanted, it is illegal.  And, in some cases, depending on the nature of rights granted to the easement holders, there may be only limited rights to use the right of way, such as during certain hours or in a manner that is not overly burdensome to the servient estate.  Any use in excess of what was originally intended by the original grantor is unlawful to the extent that it is beyond the scope of the easement rights.

To stop these kinds of trespass or unauthorized use, it may become necessary and appropriate to limit access with the use of gates or similar impediments.  But because the easement holders do have bona fide rights to cross the land in some capacity, servient landowners must take certain precautions before installing any gates so that access is not unlawfully impaired. This is because the law imposes a balancing test that takes into consideration the rights of servient landowners to continue to use their property, yet requires that such use is not inconsistent with the easement holder's rights and does not result in a material interference with his use of the easement.

In most circumstances, friction usually arises between a servient landowner and an easement holder when the servient landowner decides to install a gate across an easement many years after the easement came into existence. The servient landowner typically does this after experiencing a period of unwanted trespass by non-easement holders. In many cases, the easement holder does not want the inconvenience of having to open and close a gate to travel across the right of way, thereby leading to a dispute between the parties. Unless the parties can resolve their dispute about the gate, the landowner may eventually be subject to a lawsuit filed by the easement holder who attempts to obtain a court order to have the gate removed.

Assuming that the easement holder and servient landowner cannot resolve their differences about the presence of the gate, the court standard for determining whether a gate can remain across an easement can be found in a series of cases that originate as far back as 1910, including Blais v. Clare, 207 Mass. 67 (1910); Merry v. Priest, 276 Mass. 592 (1931); and Hodgkins v. Bianchini, 323 Mass. 169 (1948).  The cases analyzing the appropriateness of a gate have been very fact-specific, and are largely split depending on (1) the type of gate installed and (2) the scope and use of the easement at issue.  For example, in May 2011, in Quitnesset Assoc. Inc. v. DMD Props., LLC, 09 MISC 414407, the Land Court (Trombly, J.) held that even though the gate's lock combination was given to the easement holders to allow passage through, the court ordered that the gate be removed because it "would materially interfere" with the easement holders' use. 

To avoid or resolve such conflicts, Jeffrey T. Angley, P.C. can assist servient landowners and easement holders who find themselves in a situation where a gate may have become necessary to prevent the public or other unauthorized users from using the right of way.  Our attorneys are ready to assist the various stakeholders during either the pre-litigation stage or after a lawsuit has been filed. To discuss your concerns about a gate that has been or will soon be placed across an easement, please contact Jeffrey T. Angley, Esq. at 617-892-4391.

Glossary

Servient estate:  the land that is burdened by an easement

Dominant estate:  land that has the benefit of easement rights on another parcel

Easement holder: the individual(s) entitled to use an easement, usually based on rights established by deed, prescriptive rights or court declaration.

Example:  Lot A has a paved driveway on it.  Lot B abuts Lot A at the rear of Lot A, and has no direct frontage on the public way. The deed conveying Lot B states that Lot B has the right to pass and re-pass over the paved driveway on Lot A to access Lot B.  Lot A is the servient estate.  Lot B is the dominant estate and the owners of Lot B are the easement holders.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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