Friday, June 8, 2012


Among the recent real estate cases reported in Lawyers Weekly were a few where the Plaintiffs apparently forgot to bring any evidence to support their claims. But there was also a recent Land Court decision where the Plaintiff brought enough witnesses for a two day trial, but the evidence was insufficient.  In Sprocket Realty, LLC v Wendy’s International, LLC and others, 2012 WL 1026031, an abutter to a proposed Wendy’s restaurant filed an appeal of a Special Permit granted by the Agawam Zoning Board. The Plaintiff brought 12 witnesses. The Defendants brought zero; and won the case. The Plaintiff’s appeal was based on its claim that it had prescriptive rights of access and parking over a portion of the abutting parcel. The court said that “An easement by prescription over land of another requires a use that is open, notorious, continuous and adverse for twenty years” citing Ryan v. Stavros, 348 Mass. 251, 263 (1964); Labounty v. Vickers, 352 Mass. 337 (1967) and pointed out that is not necessary to prove that the use has been exclusive.

The Plaintiff failed to prove that the access across the abutting lot was continual for a period of twenty years. Even the evidence of parking by customers and employees of the Plaintiff was insufficient to prove that a prescriptive easement was created. The court concluded: “Here, neighborly accommodation was consistent with the relationship between the owners of the abutting properties. Such accommodation was reasonable given the fact that the two properties were largely connected by pavement from at least 1974 or 1975 to 2010, allowing customers to patronize more than one business without moving their vehicles, and that employees of the two major commercial entities (the Pharmacy and the Bank) frequented each other's businesses. The testimony of witnesses proferred by both parties supports an inference that, to the extent the owners of the Coyote Parcel knew or should have known of parking on their land by Pharmacy customers or employees (who were not also frequenting a business on the Coyote Parcel), it was mutually understood by the abutting landowners that such parking was permissive and not adverse.”

 I liked the “neighborly accommodation” finding to support the conclusion that the use of the abutter’s property was permissive and not adverse.


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