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PRIVATE WAYS: WHO HAS THE DUTY TO MAINTAIN AND REPAIR?

For landowners abutting a private way, obligations regarding maintenance and repair of the way depend on who owns the fee in the private way. These obligations include things like snow removal, re-paving, proper drainage and other maintenance issues.

In general, a person in control of a private way owes a duty of reasonable care to those persons using the private way. Determining who actually owns or is control of the private way is another matter.

In many cases, a landowner's deed will expressly state whether the conveyance of the lot includes the fee interest in all or a portion of the private way. Often the original land developer retains the fee interest in the private way, and therefore has the attendant duty to maintain the road. Sometimes the developer will grant the fee in the private way to a homeowner's association that will assume responsibility for maintenance and repairs.

Alternatively, in some cases, the abutting landowners may each own a portion of the private way based on the grant of land set forth in their respective deeds. Depending on how the lots are laid out around the private way and described in the deed, such ownership may or may not include the entire width of the road. In this case, all of the owners of the road will hold a collective responsibility to maintain and repair the private road; in many cases these landowners will also transfer responsibility to a duly formed homeowner's association.

All too often, however, there are deeds that do not expressly state who owns the fee in an adjacent private way. In those circumstances, the law provides relief in the construction of such deeds with M.G.L. c. 183, § 58, the so-called "derelict fee statute". For those lots that bound on a private (or public) way,

Section 58 mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way -- to the centerline if the grantor retains property on the other side of the way or for the full width if he does not -- unless 'the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.' The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way.

Tattan v. Kurlan, 32 Mass. App. Ct. 239, 243 (1992) (interpreting the derelict fee statute). The application of the statute is retroactive, and thus applies to all deeds, including those that predate the passage of the law in 1972.

Once ownership of the private way can be determined, then the rights and obligations of the owner(s) to maintain the way can be assessed. If there are also easements over the private way, additional considerations must be made and the law becomes less certain. For example, while the well established principle is that the duty of maintaining an easement rests upon the holder of the easement, Shapiro v. Burton, 23 Mass. App. Ct. 327, 333, 502 N.E.2d 545, 549 (1987), at least one Superior Court case suggests that, there may be instances where the maintenance obligations in a private right of way should be apportioned between both the servient and dominant estate holders. This is where careful analysis of all relevant deeds and plans and perhaps even the balancing of the reasonable use of the way becomes essential in determining the rights and obligations of all interested parties.

Written by Kristen M. Ploetz, Blog Editor

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

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