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  1. #1
    Join Date
    Dec 2009
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    10

    Default Can I Gate My Easement

    State of Mass

    I am the owner of the property and one neighbor has an easement over a portion of my land. Can I place a gate at the beginning of the easement? I realize I would have to give the neighbor a key to enter and exit. Can this be done?

    All my deed states is that the easement is for ingress and egress.

    Thank you

  2. #2
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Can I Gate My Easement

    Yes, I believe you can as long as the grantee has access.

  3. #3
    Join Date
    Dec 2009
    Posts
    10

    Default Re: Can I Gate My Easement

    Do you know if I need the neighbors permission first? Can I place the end of the gate right up to the boundry line between the two properties? I though maybe I would have to have the gate/fence end a few inches before the boundry line. But could that constitue me blocking the easment by a few inches?

    Also, do I need to get a lawyer involved to notify the neighbor? We are dealing with very difficult neghbors.

    Thanks for your help.

  4. #4
    Join Date
    Mar 2009
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    327

    Default Re: Can I Gate My Easement

    IMO, I do not think you need an attorney at all. You can place a gate on your property anywhere you like. However, if you are going to place a gate on the easement, you need to notify the neighbor, in writing, certified return receipt, that you are installing a gate for xxx reason and that they are free to use the gate for ingress and egress. I believe that you can even lock the gate as long as you give a key to the neighbor.

    It would'nt hurt if you took advantage of a free attorney consult.

  5. #5
    Join Date
    Mar 2005
    Location
    Michigan
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    28,621

    Default Re: Can I Gate My Easement

    Here's the way one court summarized the issue:
    Quote Quoting Yagjian v O'Brien, 19 Mass App Ct 733; 477 NE 2d 202 (1985)
    Depending on conditions, cases have reached varying conclusions concerning the adverse character of gates or barways erected by servient owners across a right of way, not to impede use of the way, but to facilitate use of the servient estate. See, e.g., Short v. Devine, 146 Mass. 119, 124-127 (1888), and cases cited; Ball v. Allen, 216 Mass. 469, 472-474 (1914); Merry v. Priest, 276 Mass. 592, 599-600 (1931), and cases cited; Lemieux v. Rex Leather Finishing Co., 7 Mass. App. Ct. 417, 422 (1979); Stucchi v. Colonna, 9 Mass. App. Ct. 851 (1980); 3 Powell, Real Property 424, at 34-259 (1977). Unlocked gates or barways may have the practical effect of burdening or delaying passage, but, by their very nature, they are consistent with, and contemplate, passage. The cases on this subject have tended to weigh slight inconvenience to the dominant owner's use of the way against the servient owner's freedom to use his property in a reasonable manner for his own benefit and convenience and to strike an equitable balance. The question is whether the interference is so slight as to be reasonable in all the circumstances. O'Linda v. Lothrop, 21 Pick. 292, 297 (1838). Hodgkins v. Bianchini, 323 Mass. 169, 173 (1948). Patterson v. Simonds, 324 Mass. 344, 352-353 (1949). Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815, 825 (1979). See Delconte v. Salloum, 336 Mass. 184, 190-191 (1957) (Whittemore, J., dissenting).

  6. #6
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,621

    Default Re: Can I Gate My Easement

    Here's the way one court summarized the issue:
    Quote Quoting Yagjian v O'Brien, 19 Mass App Ct 733; 477 NE 2d 202 (1985)
    Depending on conditions, cases have reached varying conclusions concerning the adverse character of gates or barways erected by servient owners across a right of way, not to impede use of the way, but to facilitate use of the servient estate. See, e.g., Short v. Devine, 146 Mass. 119, 124-127 (1888), and cases cited; Ball v. Allen, 216 Mass. 469, 472-474 (1914); Merry v. Priest, 276 Mass. 592, 599-600 (1931), and cases cited; Lemieux v. Rex Leather Finishing Co., 7 Mass. App. Ct. 417, 422 (1979); Stucchi v. Colonna, 9 Mass. App. Ct. 851 (1980); 3 Powell, Real Property 424, at 34-259 (1977). Unlocked gates or barways may have the practical effect of burdening or delaying passage, but, by their very nature, they are consistent with, and contemplate, passage. The cases on this subject have tended to weigh slight inconvenience to the dominant owner's use of the way against the servient owner's freedom to use his property in a reasonable manner for his own benefit and convenience and to strike an equitable balance. The question is whether the interference is so slight as to be reasonable in all the circumstances. O'Linda v. Lothrop, 21 Pick. 292, 297 (1838). Hodgkins v. Bianchini, 323 Mass. 169, 173 (1948). Patterson v. Simonds, 324 Mass. 344, 352-353 (1949). Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815, 825 (1979). See Delconte v. Salloum, 336 Mass. 184, 190-191 (1957) (Whittemore, J., dissenting).
    Also,
    Quote Quoting Shapiro v Burton, 23 Mass App Ct 327; 502 NE 2d 545 (1987)
    Additional evidence is required before an appropriate judgment can be framed and may entail such matters as the cost of maintaining the existing stairway, the need to protect against liability, see Stucchi v. Colonna, 9 Mass. App. Ct. at 852 (locked gate not unreasonable where required by the insurer; easement holder entitled, however, to a key), and how the costs should be equitably apportioned among the common easement owners.
    So it appears that a locked gate with keys distributed to holders of the dominant estate is not out of the question, but that a court will make that determination in light of the full facts and context.

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