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Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 1 | Posted Feb. 10, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

For more than 26 years, Anna Wolfe, her family and others used a shortcut across a commercial lot to get to a couple of popular destinations on the other side.

When a new buyer purchased the commercial lot, Wolfe, whose property is next door to the lot, filed suit for an easement by prescription across the lot.

At trial, the court found in Wolfe's favor, finding that she had obtained an easement by virtue of her use of the lot for so long during the previous ownership.

The commercial lot's owner, Gerald Atkins, appealed, arguing that the prior owner gave Wolfe permission to use the shortcut, that Wolfe's use of the shortcut was neither "adverse" nor "notorious," and that the easement's location was not defined with sufficient particularity.

The Commonwealth of Massachusetts Appeals Court affirmed the lower court's ruling.

While the previous owner was friendly with Wolfe, the evidence before the lower court showed that the previous owner remained silent on the occasions he observed Wolfe and her family using the shortcut, and did not show that he gave them permission to use his property as a passageway.

Under precedential rulings, this evidence was sufficient to support the lower court's finding that Wolfe's use of the property was adverse -- not based on the previous owner's permission.

The same evidence, the appeals court explained, supported the lower court's finding that Wolfe's use of the shortcut under the lot's previous ownership was notorious.

The notoriety element required only that Wolfe's use of the lot was "sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property."

Given the evidence and the new owner's acknowledgement that the previous owner was aware of Wolfe's use of the lot as a shortcut, the appellate court found the "notorious use" factor was satisfied.

Finally, the court explained, the variations in Wolfe's shortcut route across the lot were not based on her whim but on the need to navigate around cars that were parked in different places on the lot on different dates.

Accordingly, the appeals court found that Wolfe's variations in her route were "not substantial enough to defeat her claim for prescriptive easement."

Finding that sufficient evidence existed to support the trial court's finding that Wolfe's use of the shortcut was notorious, adverse and "defined with sufficient particularity," the appeals court denied the new lot's owner's appeal and upheld the trial court's ruling.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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1. Edward Borowsky said... on Feb 10, 2010 at 06:55PM

“Much detail missing from the report. Does it take 21 years of continuous use of the easement demanded to win the right of way. What proof was presented in court to prove their position. Did the buyer have the right to return the property to the seller for a full refund of their Purchase Price. I have a sister in Pennsylvania who fenced a 30' x 30' piece of land in back of her property as an extention to her rear yard. She had fenced posession of the 900 sq ft for over 30 years when she made a claim against the current owner. The property was raw land that was not in use. Her Attorney suggested that she could not win in court..”

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