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Land Court Holds Condominium Unit Owners Cannot Establish Easement By Necessity Over Neighboring Unit Owners’ Exclusive Use Area

A recent decision issued by Chief Justice Cutler of the Land Court considered a claim by condominium unit owners that they had acquired an implied easement by necessity over a portion of the common area that had been designated for exclusive use by neighboring unit owners. In Vuzman v. Kales, No. 15 MISC 000348 (JCC), 2017 WL 2917798 (Mass. Land Ct. July 7, 2017) (Cutler, J.), the Land Court allowed the defendants-unit owners’ motion for judgment on the pleadings and held that no easement by necessity had been created.

In Vuzman v. Kales, No. 15 MISC 000348 (JCC), 2017 WL 2917798 (Mass. Land Ct. July 7, 2017) (Cutler, J.), the Land Court allowed the defendants-unit owners’ motion for judgment on the pleadings and held that no easement by necessity had been created.

Vuzman concerns a two-unit residential condominium located in Newton. Created in 1991, the 129-131 Cypress Street Condominium is comprised of one large building containing the two units, a barn and outdoor land area. At the time of creation of the Condominium, all of the outdoor land area was designated as “exclusive right area” for each of the units. Specifically, the plaintiffs’ exclusive use area (or, “limited common area” under G.L. c. 183A, § 1) is located at the rear of the Condominium, accessed by a thin strip of land along the Condominium’s southeasterly property boundary. The defendants’ exclusive use area is adjacent to the north of the plaintiffs’ exclusive use area, surrounding the residential building. A site plan was recorded with the Condominium’s Master Deed and clearly delineated each unit’s respective exclusive use area.

The dispute between the unit owners arose when the defendants informed the plaintiffs that they intended to remove certain stairs in their exclusive use area and to install a fence around the backyard portion thereof. The plaintiffs, who alleged that they utilized the stairs located on their neighboring unit owners’ exclusive use area in order to access their exclusive use area to the rear, objected to the proposed changes. The plaintiffs alleged that the installation of the fence would entirely eliminate their ability to safely access and utilize their exclusive use area at the rear of the Condominium’s common area.

After quickly disposing of the plaintiffs’ claims alleging violations of the provisions of the Condominium’s Master Deed and Declaration of Trust, the Court then considered the unit owners’ allegation that they hold an “implied easement by necessity” through their neighboring condominium unit owners’ exclusive right area because they otherwise cannot access their exclusive use area to the rear.

In considering this argument, the Court acknowledged that ownership of a condominium unit is a “hybrid interest in real estate, entitling the owner to both exclusive possession of his unit and an undivided interest as tenant in common with other unit owners in the common areas.” Id. at *7. This situation, according to the Court, is inapposite to – and does not meet the requirements for – creation of an easement by implication or necessity. Id., quoting New England Cont’l Media, Inc. v. Town of Milton, 32 Mass. App. Ct. 374, 378 (1992) (“An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel.”); Kitras v. Town of Aquinnah, 474 Mass. 132, 140 (2016) (“A presumption of easement by necessity arises upon a showing of the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.”). “Simply put, because this case involves a condominium development submitted to Chapter 183A, which does not, by its very nature, involve a division of land into separately owned parcels, the common law theory of implied easements does not apply here. From the time of execution of a master deed, the rights in and to the condominium are defined by the master deed and Chapter 183A of the General Laws.” Id.

The Court concluded that the Master Deed’s designation of exclusive use areas did not constitute a division of the Condominium’s common area into separate ownership or constitute a severance of unity of title of the common area, recognizing foundational principles of condominium law. As the intent of the Master Deed was clear in its designation of the exclusive use areas for each unit, any difficulty that the plaintiffs encountered in obtaining access to their rear exclusive use area was of no import.

The Court’s decision in Vuzman makes clear that it views the allegation concerning the purported creation of implied easements over a Condominium’s common area, including the exclusive use portions thereof, different from the traditional scenario for creation of such easements under common law. While the Vuzman decision reaches the correct conclusion based upon the facts in the case – and, particularly in light of the fact that the plaintiffs do have access to the rear of the Condominium common area over an exclusive use strip of land – it does at least raise the question of how the Court would handle a similar circumstance in which a unit owner was deeded an exclusive use area with no means of access but over another unit owner’s exclusive use area. It appears that, under the reasoning of Vuzman, the Court would look upon any claim to an implied easement by necessity as inapplicable under such circumstances.

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