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  1. #1

    Default Enforcement of the Terms of a Mutually Restrictive Easement

    My question involves real estate located in the State of: Massachusetts


    I am contemplating the purchase of residential property. Let's call this "Property A"

    Until recently, the seller owned the neighboring lot/house and utilized it as a guest house to Property A - let's call this "Property B". The seller entered into a mutually restrictive easement with an (unrelated) abutting neighbor a few years ago. Let's call this neighboring lot "Z".

    The seller subsequently sold "B" to a new owner.

    The easement established a well-defined area for restrictions that encompassed all 3 properties - A, B, and Z. Among other things, the easement prohibited any decks or patios on the rear of Property B. The view at the time was that since property B's rear lot line was so close to important parts of property Z, that this restriction was necessary for Z's privacy. The easement was mutually signed by 2 parties: the seller as owner of Properties A and B (both properties explicitly named on easement), and the then-owner of Z. Since the seller owned both Properties A & B, there was no contemplation of language that allowed A or B to explicitly enforce restrictions on each other since one owner controlled both. At the time, the main view was that the seller as owner of both properties had no need for language allowing A or B to enforce restrictions on each other; the enforcement language is limited to the 2 then-owners (owner of then A&B, and the owner of Z).

    To make a long story short(er), a patio or deck at the rear of property B would also be problematic for property A (proximity to bedrooms, etc) and would likely erode value and enjoyment of use given the noise, less appealing visual appeal, etc.

    I am concerned about a scenario where Property B builds a deck/patio in violation of the existing easements. In this event, I am concerned that the current owner of Property Z may not seek to enforce the prohibition on said structures. Since there is no explicit mechanism for A and B to enforce provisions of the easement on each other, does A's owner have any legal pathway to enforcing the structure prohibition on Property B, or would I have to rely exclusively on Property Z's willingness to enforce the restriction?

  2. #2
    Join Date
    Oct 2006

    Default Re: Do I Have Easement Enforcement Rights

    Well, A was dumb not to deal with the matter when he/she sold B. I do not see any legal pathway to support that now. You will just need to decide whether or not the property is worth the risk.

  3. #3
    Join Date
    Nov 2013

    Default Re: Do I Have Easement Enforcement Rights

    I would take the position that the restrictions go with the property no matter who owns them and all three properties (A,B,and Z) have the right to enforce the restrictions.

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