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Derelict Fee Statute - Exceptions and Reservations

In my previous post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I addressed the basics of its application and noted that most of the case law interpreting the statute concerns what it means to be "real estate abutting a way". A small handful of cases, however, has focused on how to opt out of its application-what constitutes "an express exception or reservation" under the statute.

There are two relevant appellate-level decisions and two decisions from the Land Court, which bear on this question. The first is Emery v. Crowley, 371 Mass. 489 (1976). In Emery, the Supreme Judicial Court technically concluded that the relevant properties did not comprise "real estate abutting a way" for purposes of the statute. See id., at 493-494. However, in so concluding, the court reasoned as follows:

We conclude that parcel 2 did not constitute a 'way' . . . Both the metes and bounds descriptions of the lots conveyed and the plans incorporated in the deeds clearly delineate the property now known as parcel 2 as belonging to the grantor or his spouse. The parties obviously intended and understood that this land was retained by the grantor. Only one lot (exhibit 16) was conveyed with an express easement across all of parcel 2 and such an easement was necessary for access to and enjoyment of that lot. Another lot received a curvilinear right of way over the northwest corner of parcel 2 inconsistent with a plan to pave and grade parcel 2 as a road. A prospective purchaser examining the deeds to the land abutting parcel 2 on its north and south boundaries would have no reason to think he would acquire any interest in parcel 2 beyond those express easements. Thus, s 58 does not apply to those instruments.

Id., at 493. Thus, the court appeared, not only to conclude that "parcel 2" was not a "way", but also that the grantor, in any event, retained the fee in that property, given the language used in the deeds and the easement rights expressly granted thereunder.

The second appellate-level decision is Tattan v, Kurlan, 32 Mass. App. Ct. 239 (1992).. In Tattan, the plaintiff argued that because the plan, referenced in the relevant deed, labelled the disputed way "as 'reserved' for 'future roadway' and for 'future street purposes,'" the original grantor had effectively reserved the fee interest in the way per the Derelict Fee Statute. See id., at 244. While the Appeals Court opined that perhaps this language reserved an easement for the grantor over that way, see id. at 244 n. 7; "[b]oth the language and the grammatical structure of the statute require that what must be expressly excepted or reserved in order to satisfy § 58(b) is the antecedent 'fee interest,' not some other interest or element of land use or enjoyment." Id., at 245 (Emphasis added). In short, what must be reserved or excepted is the ownership interest in the way, not an easement or use right over the same.

Applying this case law, Judge Grossman of the Land Court has decided two cases in which claimants argued that the relevant deeds expressly reserved the ownership interests in the applicable ways. See Del Torchio v. Movali, 17 LCR 137 (Misc. Case No. 348698) (Feb. 19, 2009) (Grossman, J.); Holy Spirit Assoc. for the Unification of World Christianity, Inc. v. Posten, 18 LCR 169 (Misc. Case No. 389954) (March 17, 2010) (Grossman, J.). In Del Torchio, the Court concluded that "the plaintiffs' source deed include[d] an express reservation in the grantor of the fee in the right of way." Id., at 148. It reached this conclusion because (1) "the plaintiffs' source deed describe[d] the disputed right of way as extending 'over the remaining land of the grantor'", id., at 147; and (2) the deed "convey[ed] the grantee an easement in the right of way" "which would have been unnecessary, if the grantor had intended to allow the common law default rule [codified by the statute] to control." Id., at 147, 147 n. 75. These two factors, it concluded, made Del Torchio more akin to Emery, and not controlled by Tattan.

In Posten, the Court was again asked to consider a claim that the ownership of the right of way had been reserved in the relevant source deed. In Posten, the plaintiff invoked Del Torchio as requiring a like outcome because the deed granted an easement over the disputed way. See id., at 172. Rejecting the argument, the Court held that, without more, the mere grant of an express easement over a right of way was insufficient evidence of intent to reserve the ownership of the way so as to opt out of the statute's application. See id. Distinguishing the case from Del Torchio, the Court reasoned that it had "based [its] conclusion [in that case], in large measure, upon the language describing the disputed way as existing 'over remaining land of grantor'", which "phraseology was indicative of the grantor's intent to retain the fee in the way." Id. "Critically, the language relied upon . . . in DelTorchio to distinguish it from Tattan, [wa]s wholly lacking in the case at bar." Id. Thus, the Court held that the source deed, "in conveying land abutting the [way] and evidencing no intent to retain the fee interest in the way by express exception or reservation, served to convey title to the [same] to the mid point thereof." Id. (Emphasis in original).

The decisional law, thus, teaches that parties may only exempt a conveyance from the operation of the statute by excepting or reserving the fee ownership interest in the abutting way in the deed itself. See Tattan, supra. However, decisions out of the Land Court demonstrate that it is not always clear how to effectuate such an exclusion or reservation. In Del Torchio, applying a functionalist / practical approach to the question, the Court concluded that the grantor effected an exception or reservation simply by referring to the way, in the bounding description of the property conveyed, as extending "over the remaining land of the grantor." Such a conclusion does not necessarily comport with ordinary conveyancing practices, through which the reservation or exception of an ownership interest comes, not in, but after the property description. Nonetheless, this approach eschews formalism and "magic words" requirements, which is consistent with how the Supreme Judicial Court has considered questions construing whether a clause in a deed constitutes an exception or a reservation. See McDermott v. Dodd, 326 Mass. 54, 56 (1950) ("In determining whether a particular form of words constitutes an exception or a reservation, little reliance can be placed upon the use of the word reserve or the word except"). Moreover, Posten shows that, even when it is applied, a functionalist, pragmatic approach has its limits.

Nevertheless, because Del Torchio and Posten are merely persuasive authorities, it remains an open question as a matter of Massachusetts law whether a grantor must use "magic words" to except or reserve the ownership interest in a right of way and thereby opt out of the Derelict Fee Statute's operation.

Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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