Who maintains "road" easement?

[granapple]

What is the name of your state (only U.S. law)? Massachusetts

I have an easement to use a 40' wide "road" for anything a street can be used for in my town. The "road" was created when the owner of the land under it sold my property to someone who needed access and frontage to build the house I now live in.

The owner of the land under the easement maintained the right to use the 40 foot road for anything a street in town can be used for. I have looked at all the deeds and checked with the local planning board, but nowhere can I find anything concerning who is responsible for the plowing and maintenance of the road.

Is it the owner's responsibility to plow and maintain the road? They claim that because they seldom use the road, they should not have to do anything.What is the name of your state (only U.S. law)?

 

[HomeGuru]

What is the name of your state (only U.S. law)? Massachusetts

I have an easement to use a 40' wide "road" for anything a street can be used for in my town. The "road" was created when the owner of the land under it sold my property to someone who needed access and frontage to build the house I now live in.

The owner of the land under the easement maintained the right to use the 40 foot road for anything a street in town can be used for. I have looked at all the deeds and checked with the local planning board, but nowhere can I find anything concerning who is responsible for the plowing and maintenance of the road.

Is it the owner's responsibility to plow and maintain the road? They claim that because they seldom use the road, they should not have to do anything.What is the name of your state (only U.S. law)?

**A: the answer to your question would be contained in the recorded easement agreement.

 

[seniorjudge]

**A: the answer to your question would be contained in the recorded easement agreement.

Correct.

Give us the EXACT language in the document creating the easement.

 

[drewguy]

The common-law rule is that the easement holder is responsible for maintenance, not the property owner across whose property the easement passes.

This rule can be altered by the terms of the easement or by statute. Courts in some states may have altered the rule as well.

 

[FarmerJ]

But if the property who benefits doesnt have consent written into the easement to maintain it IF they do any thing to the property they use for access they should either get permission to do so in writting OR keep it to the barest minimum so they do not damage the property. EVEN if they think its a improvement say like adding gravel to a gravel driveway since adding gravel with out consent could be seen by the lands owner as DAMAGE ! Even snow removal if done by a blade that scrapes too much material might be considered damage if done with out consent.

 

[granapple]

It is?

**A: the answer to your question would be contained in the recorded easement agreement.

Like I said, there is no recorded easement agreement, just a recorded easement stating that I have the right to use the road, which appears
on a (referenced) plan, for any purpose a road or street may be used for in my town. In absence of an agreement that requires me to share in the maintenance of the road, I assume this burden is on the grantor. Anyone got any idea whether this is a reasonable assumption or not?

 

[granapple]

Exact wording

Said lot A is subject to the rights of owners of lots B & C to use the 40 foot easement, approximately shown on said plan, for all puposes for which street and ways are used in the town.

The grantors created the road so they could benefit from the sale of lots B & C. Don't they have a duty to keep the road passable?

 

[granapple]

Oops, Important Fact

I forgot to state that the grantor of the easement maintained the right to use the easement for the same purposes as the grantees.

 

[granapple]

Better Description

Said premises are conveyed together with the right to use in common with the Grantors for all purposes for which street and ways are commonly used in the town, a "40' wide roadway easement" shown on said Plan.

 

[drewguy]

Said premises are conveyed together with the right to use in common with the Grantors for all purposes for which street and ways are commonly used in the town, a "40' wide roadway easement" shown on said Plan.

So, if I understand your situation correctly you, a neighbor, and the owner of the land across which the road/driveway goes, all have rights to use it as a driveway. If so, then absent something explicit in the easement, state law providing otherwise, or a state court ruling changing the common law, you all would be jointly responsible for maintenance. Without more facts, you'd like be equally responsible.

 

[drewguy]

But if the property who benefits doesnt have consent written into the easement to maintain it IF they do any thing to the property they use for access they should either get permission to do so in writting OR keep it to the barest minimum so they do not damage the property. EVEN if they think its a improvement say like adding gravel to a gravel driveway since adding gravel with out consent could be seen by the lands owner as DAMAGE ! Even snow removal if done by a blade that scrapes too much material might be considered damage if done with out consent.

The standard is generally reasonableness. I do not see how adding gravel to a gravel road would be considered unreasonable. I'm sure one could come up with facts that would make it so, but they seem unlikely to arise in most circumstances.

 

[granapple]

You have it!

So, if I understand your situation correctly you, a neighbor, and the owner of the land across which the road/driveway goes, all have rights to use it as a driveway. If so, then absent something explicit in the easement, state law providing otherwise, or a state court ruling changing the common law, you all would be jointly responsible for maintenance. Without more facts, you'd like be equally responsible.

You understand the situation. What do you do if someone refuses to share the cost? Also, I am looking to see if anyone has any direct experience here. One attorney told me that in Mass. the courts have held that in absence of an agreement, the responsibility to keep the road useable goes to the owner of the road. Unfortunately, he would only offer free advice.
When I tried to pay him for aditional information he said he was only doing a favor (!!??!!)

 

[drewguy]

You understand the situation. What do you do if someone refuses to share the cost? Also, I am looking to see if anyone has any direct experience here. One attorney told me that in Mass. the courts have held that in absence of an agreement, the responsibility to keep the road useable goes to the owner of the road. Unfortunately, he would only offer free advice.
When I tried to pay him for aditional information he said he was only doing a favor (!!??!!)

You can sue to force him to share the cost.

How large is the cost? I know there's been a lot of snow, but how much does plowing cost? $500/winter? I know that's not cheap, but lawsuits aren't either. The fact that he isn't using the road much suggests he's not trying to be a freeloader. Can you plow only the portion you use (not sure of layout).

BTW, my experience is with a shared driveway/alley that needed (re)paving. One of 7 owners held out and refused to participate. We went ahead anyway, and basically split his 1/7th share between us. The extra 15% amounted to a few hundred dollars each, and it wasn't worth fighting over. We could join together and sue him, I imagine, but time is also worth something.

 

[154NH773]

I have a similiar situation in NH. My easement right of way crosses three properties, and provides access to each. Two have clauses in their deeds obligating them to share equally in maintenance. The third's deed says nothing about maintenance and neither does my deed.

All the parties refused to share in maintenance which I am providing by necessity as the last house on the right of way.

I have sued the two parties, whose deed requires sharing, in Small Claims Court, and was successful in a judgment against them.

The third party, whose deed said nothing, I brought a Quiet Title action in Superior Court and based on the following caselaw:

An unrestricted right of way is subject to a determination of reasonable use. When the uses of a deeded right of way are not specified or restricted in the deed, "[t]he uses to which easements may be put are questions of fact to be arrived at by considering all of the surrounding circumstances, including location, the uses of both parties' properties and the advantage of one owner's use and the disadvantage to the other owner caused by that use." The trial court may consider extrinsic evidence when asked to determine the extent and reasonable use of a right of way. Flanagan v. Prudhomme, 138 N.H. 561

The Court reformed the third party's deed and found they were obligated to contribute equally for maintenance. This case was in NH, and MA Courts might act differently.

In your situation, if all parties are using the easement equally, you should all share. There is no obligation of the servient tenant (owner) to maintain the right of way if he doesn't use it, and is not required by the easement language.

As to what you may do to the right of way as a dominent tenant, I'd say anything reasonable to ensure your access and ease of maintenance. If you go overboard and pave it you might have a very difficult time trying to get him to share. You can probably only get him to share in the minimum necessary to provide a "reasonable" access.

that's not cheap, but lawsuits aren't either. The fact that he isn't using the road much suggests he's not trying to be a freeloader.

Try and work it out, I've spent 4 years in court, and if I wasn't pro se it would have cost me perhaps $20,000. I never really cared if they shared in the cost, but it became a personal dispute on principle.