Easements by Estoppel

Easements exist when one person has a nonpossessory interest in land that belongs to someone else. There are many different ways an easement can come into being. Most but not all easements are recorded at the Registry of Deeds, and they are unearthed through a title search at the time a home is purchased. If you are concerned about an easement by estoppel or another encumbrance that could affect your ownership and use of a home, you should consult the experienced Boston real estate attorneys at Pulgini & Norton.

Generally, an easement by estoppel is a type of easement created when an owner acts such that another person reasonably believes he or she has an interest in land, and he or she acts or does not act in reliance on that belief. Easements on land can have a substantial effect on how a buyer uses his or her property over the long term.

Massachusetts recognizes two types of easements by estoppel. The first exists when a grantor conveys land that is bound by a way or a street. The grantor is not permitted to deny that this street or way exists. Accordingly the right of way acquired by the grantee or recipient of the conveyance includes both the land conveyed as well as the whole length of the way as is it then indicated. This type of easement by estoppel exists even when the way does not actually exist yet, as long as it has been contemplated and designated, presumably by a developer.

The second exists when property on a street is conveyed according to a recorded plan that shows the street. In that case, the grantor cannot deny that the street exists for the whole distance described on the plan. The easement that exists extends to all the ways that are described on the plan that the grantee could reasonably expect that he or she would have the right to use.

The "estoppel" runs against the grantor. If you, as the grantee, are trying to establish an easement by estoppel, you would need to show that a representation was communicated to you, you believed the representation, and you relied on the communication. The element of reliance requires the person claiming the easement to show that he or she relied on the easement to his or her detriment. This can be assessed based on the surrounding circumstances.

An easement can be perpetual, or its duration may be temporary and qualified by the instrument that creates it. When the easement by estoppel is based on a boundary that lies on a way, the easement is perpetual.

For most people, the purchase of a home is one of the most expensive transactions of their lives, and it is important for the transaction to go smoothly and the buyer to understand his or her rights as a homeowner. When you buy a home, you should have a title search to determine whether an easement by estoppel or other encumbrances exist. The real estate lawyers at Pulgini & Norton advise Boston residents on home purchases and also represent people in Malden, Waltham, Hyde Park, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form for a free consultation.