Appeals Court holds no “easement by necessity” for maintenance of land obtained by adverse possession.

In the recent decision, McDonald v. Andrade, the Massachusetts Appeals Court reversed a trial court decision, awarding an easement to a Plaintiff who had – in the same lawsuit – obtained the land to which the easement pertained by adverse possession.

This case involved a shed owned by the Plaintiff that encroached on the property of the Defendant, the Plaintiff’s abutting neighbor. Following a jury-waived trial, the Superior Court judge found in favor of the Plaintiff and awarded him the land under the shed by adverse possession. The judge also awarded the Plaintiff an easement three feet in width around the shed to allow the Plaintiff to have access to the sides and the rear of the shed for maintenance purposes.

An easement is a right of use for a specific purpose over land belonging to another. An express easement is created by a written instrument such as a contract or deed, while an implied easement can be found based on the intent of the parties at the time of the transaction that gave rise to the claim of the easement. An easement “by necessity” is a type of implied easement that arises when a parcel of land has been created by its separation from another parcel by conveyance. An easement can be implied in this situation from the intent of the parties, as gathered by the court based on the circumstances, at the time when common ownership of the two parcels was severed, based in some cases on prior use and in other cases on necessity to access the newly landlocked parcel.

In this case, the Plaintiff first requested the easement after the trial on his adverse possession claims, but before the entry of the judgment. After the trial, the judge issued a decision ruling that the Plaintiff had met his burden of proof for establishing adverse possession and requested that the parties submit a legal description of the boundaries of the property as modified to include the area of the shed so he could incorporate that description into the judgment. In response, the Plaintiff submitted two proposed judgments and plans, the first of which included a “maintenance easement” so that the Plaintiff could access the side and rear of the shed for painting and maintenance. Following a hearing, but without making any additional findings of fact or rulings of law, the judge entered judgment for the Plaintiff, granting him adverse possession over the land on which the shed sat, along with a three-foot wide easement for shed access and maintenance purposes, which the judgment described as an “access easement.” The Defendant appealed.

On appeal, the Plaintiff argued that he had “reasonable necessity to maintain and access the rear of the shed,” and, separately, that the evidence supported a grant of an easement.

The Appeals Court upheld the portion of the trial judgment awarding the land under the shed to the Plaintiff by adverse possession, holding there was sufficient evidence to find that the Plaintiff had satisfied his burden of proving had he had engaged in actual, open, notorious, continuous, nonpermissive, and exclusive use of the property on which the shed sits for at least twenty years prior to 2014. However, the Appeals Court found that the award of the three-foot easement around the shed “stands on somewhat different footing.”The Court declined to find an easement by necessity in this case, stating that Plaintiff cited no case in which an easement “by necessity” was been found appurtenant (or attached) to land obtained by a party through adverse possession.

It then examined whether a “prescriptive” easement would apply. The elements of a prescriptive easement, which are similar to those of adverse possession, are open, notorious, and adverse use of the property for twenty years. An easement can be found where such use is proven but it is not the exclusive use of the area at issue.

The Appeals Court concluded that, while the Superior Court judge found that the Plaintiff adversely possessed the land under the shed, he did not make any findings relative to the Plaintiff’s continuous or uninterrupted use of the land around the shed, nor was there sufficient evidence in the record to support such a finding. As such, it held that the Plaintiff failed to meet the elements of a prescriptive easement at trial and reversed the portion of the judgment creating the easement.

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