Rich May: News

March 2008

Rich May’s Client Granted Prescriptive Easement Over a Private Way for Access to a Beach on Cape Cod

In a decision dated March 13, 2008, a judge in the Massachusetts Land Court issued a Judgment in favor of Rich May’s client in a case involving a dispute over the right to travel by foot over a private way to get to a beach on Cape Cod. This is the first reported case in Massachusetts in which a property owner was held to have acquired a prescriptive easement for use of a private way to get to a beach where the private way and the owner’s property were not contiguous.

Rich May’s client owns property in Sandwich that is about ½ mile from a private way that they have used since May 1998 to get to the beach on Cape Cod Bay. The private way is bounded by four properties, the owners of which each own a portion of the private way. One of those property owners brought an action in June 2004 to stop Rich May’s clients from using the private way.

James T. Finnigan of Rich May argued that his client had acquired a prescriptive easement to use the private way because they and the persons from whom they purchased their property (their predecessors in title), had used the private way to go to and from the beach since July 1974 or approximately 29 years. A prescriptive easement is similar to a claim for adverse possession of property in that the claimant must show that his use of the property was open, non-permissive and continuous for twenty years or more.

The novel legal issue involved the distance between the property owned by Rich May’s client and the private way. The plaintiffs argued that the law did not recognize the existence of an easement where the properties in question were so far apart. Mr. Finnigan maintained that Massachusetts law did not require properties to be adjacent before a prescriptive easement could be created and that there was a close tie between his client’s use and enjoyment of their property and the private way. The Land Court judge accepted that argument and issued a Judgment stating that Rich May’s client had a prescriptive easement to use the private way to travel by foot to go to and from the beach.

In addition to guarantying Rich May’s client access to the beach, the Judgment is a property right that they own as part of the property on which their home is located, ensuring that they and their successors in interest will have the benefit of the prescriptive easement.

About Rich May
Rich May, a mid-size law firm located in Boston’s financial district, concentrates its practice on corporate, financial, civil litigation, energy, real estate, entertainment and wealth planning matters. The firm’s clients include a broad group of businesses in New England and throughout the country. Rich May provides the breadth and depth of expertise generally associated with large, national firms, while maintaining the prompt, personal service found in smaller, regional firms. Our clients have direct access to experienced attorneys who are familiar with both the client and the area of inquiry and can provide timely and practical legal solutions.

Rich May has been elected and admitted as a member of the International Alliance of Law Firms. This membership, which provides affiliations with 53 firms in 37 countries, supplements our ability to assist clients throughout North America and overseas. For more information visit www.richmaylaw.com