Surety Bonds in Massachusetts Zoning Appeals – Know Before You Appeal

Marissa P. Giaimo

Surety bonds are financial guarantees. While they are often used in the construction industry and in commercial licensing contexts, in Massachusetts

they can also be required by a judge. When a party appeals a municipal board decision in Massachusetts, the court hearing the case may demand that the appealing party issue a bond to be collected by the opposing party upon obtaining a winning judgment.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply.

In many zoning appeals in Massachusetts, wherein a party appeals the decision of a municipal board to a court, the third paragraph of G.L. c. 40A, § 17 determines the amount of the bond that may be awarded. Chapter 17 of G.L. c. 40A (Zoning Act) also provides the applicable bond provision for Chapter 40B (affordable housing) appeals of comprehensive permits. See G. L. c. 40B, § 21. Recently, in April 2026, attorneys at MBG secured a § 17 bond in the amount of $200,000 for a client in the Land Court related to the review of a comprehensive permit under Chapter 40B.

The bond provision found in the third paragraph of G.L. c. 40A, § 17 was amended by the Affordable Homes Act (St. 2024, c. 150, § 12), a landmark piece of legislation signed by Governor Maura Healey in 2024. The amendment increased the amount of a surety bond permitted under this section from $50,000 to $250,000 and also included a provision allowing for the indemnification and reimbursement of damages and expenses in addition to costs (which were previously allowed) to the defendant should they prevail in the zoning appeal. Furthermore, it added a statement that a court is not required to find “bad faith or malice of a plaintiff” in order “to issue a bond under this section.” G.L. c. 40A, § 17, as amended. As it reads now, any plaintiff appealing a zoning decision approving a variance, site plan, or special permit may be required to “post a surety or cash bond” up to $250,000. Id.

The Zoning Act is not the only statute that allows for judicial bonds in Massachusetts. There are other bond provisions, too. For example, G.L. c. 231, § 98 allows for bonds in appeals by municipalities of civil decisions of the District Court. Additionally, Section 11 of the Boston Zoning Code (St. 1956, c. 665, § 11, as amended) allows a court to require a surety bond “to indemnify and save harmless . . . from damages and costs” the person whose municipal win has been appealed. And, while Section 17 directly governs zoning appeals, G.L. c. 231, § 117 has been relied upon in certain cases in order to address the posting of a bond in appeals following final judgment.

Unlike Section 17 of the Zoning Act, G.L. c. 231, § 117 is a bond provision that does not specifically authorize a surety bond in so many words. Nonetheless, Massachusetts courts have held that a surety bond may be issued under this section. Recently, in a Memorandum and Order out of the Massachusetts Land Court, Judge Foster determined that a defendant was entitled to an appeal bond under G.L. c. 231, § 117 in the amount of $750,000. In his Order, Judge Foster notes that § 117 permits judges to “make any proper interlocutory orders,” including ordering that an appeal bond be required.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply. Given the complexity of this area of law, this has been a basic overview of some of the general bond provisions that may apply in Massachusetts actions.

Marissa (Mari) is an Associate at the Quincy-based firm of Moriarty, Bielan & Gamache LLC, focusing her practice on real estate and land use issues, worked on research projects involving historical land title matters and restrictions on state-owned land in Massachusetts, and completed a judicial internship at the Massachusetts Supreme Judicial Court.  Mari can be contacted my email at mgiaimo@mbgllc.com. 

Appeals Court Clarifies Easement Rights Following Merger of Dominant and Servient Estates

 Elizabeth A. Lake

 In a recent decision, the Massachusetts Appeals Court addressed the intersection of easement law, the doctrine of merger, and implied easements in

Elizabeth A. Lake

Gladstone v. Denizard, Appeals Court No. 25-P-480 (June 15, 2026). The case arose from a long-running dispute over the use of a privately owned oceanfront beach in Dartmouth and provides important guidance regarding the continued viability of easement rights after common ownership of dominant and servient estates.

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue.

Background

The dispute in Gladstone v. Denizard involved several neighboring property owners who claimed rights to use a privately owned beachfront parcel for boating, bathing, fishing, and other beach-related activities. The claimed rights originated from easements created in the late nineteenth century when a larger waterfront tract was subdivided and conveyed to multiple grantees. Over time, portions of the original dominant and servient estates came into common ownership, raising questions regarding whether certain easement rights had been extinguished by merger.

The Plaintiffs in this case, some of whom owned inland properties, sought to establish that they retained enforceable rights to access and use the Defendant’s beachfront property for both passage and recreational purposes. They argued that their historic easement rights either survived the periods of common ownership or were effectively recreated through subsequent conveyances. They contended that their longstanding use of the beach for access and recreation demonstrated an intent to preserve broad rights, including activities such as boating, bathing, and general beach use, and that any merger did not eliminate their ability to continue those uses. 

The Defendant, Denizard, is the current owner of the beachfront parcel that is subject to the claimed easement rights. She opposed the Plaintiffs’ use of her property and argued that any easement rights benefiting the inland lots had been extinguished when a prior owner acquired both portions of the dominant estate and the burdened beachfront property. She further contended that subsequent owners could not use surviving easements benefiting other parcels to access or enjoy the beach because doing so would improperly overload the easement.

The Appeals Court’s Decision

Merger Extinguished the Original Easement Rights

The Appeals Court agreed that the doctrine of merger applied to certain portions of the Defendant’s property. Under Massachusetts law, the doctrine of merger provides that when the same person acquires title to both the dominant estate (the property benefitted by an easement) and the servient estate (the property burdened by the easement), the easement is extinguished as a matter of law. The Appeals Court reaffirmed that once extinguished, an easement does not automatically revive if the properties are later separated; instead, new easement rights must arise through express grant, reservation, or implication based on the circumstances of a subsequent conveyance.

Implied Easement Reserved Upon Subsequent Conveyance

Although the Appeals Court concluded that merger extinguished the original easements affecting certain inland parcels, it held that an implied easement arose when the common owner later conveyed the beachfront parcel while retaining the surrounding properties. The implied easement was created at the time of that conveyance based on the circumstances showing that the grantor intended to reserve a right of access over the beachfront parcel for the benefit of the retained inland parcels, and that such access was reasonably necessary for their use and enjoyment. Applying established Massachusetts principles governing implied easements, the Appeals Court found that continued access across the beachfront parcel was reasonably necessary for the landowner’s enjoyment of the retained properties. The Appeals Court emphasized that the circumstances surrounding the conveyance demonstrated an intent to preserve access rights, even though no express reservation appeared in the deed.

Scope of Rights Matters

One important aspect of the decision is the Appeals Court’s distinction between access rights and recreational rights. For certain inland property owners, the Appeals Court held that the implied easement permitted only the right to pass and repass across the Defendant’s property to reach other shoreline areas. Those owners were not entitled to use the Defendant’s beach for general recreational activities such as sunbathing, picnicking, or beach games. The Appeals Court found that allowing broader use would improperly expand the implied easement beyond what was reasonably necessary and would overload the surviving easement rights. By contrast, owners whose properties acquired beach-use rights before the merger occurred retained broader easement rights allowing customary beach activities incidental to boating, bathing, and fishing. The Appeals Court upheld the Land Court’s determination that those rights included modern recreational uses such as sitting on blankets or chairs, sunbathing, picnicking, and playing beach games.

Conclusion

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue. The decision serves as a reminder that easement disputes often turn on detailed title history and the specific circumstances surrounding decades-old conveyances. Property owners, developers, and title professionals dealing with coastal property should carefully evaluate historic easement language and ownership history before relying on claimed access or recreational rights.

A member of REBA’s Condominium Law Section, Liz is an associate in the Litigation Department of the firm of Moriarty Bielan & Gamache LLC, specializing in real estate and land use matters. Liz represents developers, condominium associations, and individual property owners in a variety of real estate litigation matters, including adverse possession, easement disputes, and zoning appeals. Liz also has experience representing individual property owners and developers before municipal boards and obtaining local permits for development projects. She can be contacted at elake@mbgllc.com.

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Landlords On Notice: Security Deposit Funds Do Not Cover “Reasonable Wear and Tear”

 George Georgountzos

It is often said that being a residential landlord in Massachusetts is difficult. There is a perception that statutory rules favor tenants, particularly with respect to the handling of security deposit funds. Mass. Gen. L. c. 186, §15B outlines the landlord’s responsibility with respect to security deposits. For

example, a landlord may only retain a security deposit equal to the first month’s rent, provided that the tenant is provided a statement of condition within ten (10) days of receipt of the security deposit funds. Security deposits must be held in a separate, interest-bearing account in a bank located in Massachusetts that is outside the reach of the landlord’s creditors, and provide the tenant with the bank’s name, location and account number.  Landlords must pay the tenant the yearly interest on the funds held. Landlords must return the security deposit funds within thirty (30) days after the tenancy ends, or provide a detailed itemization of damages, reasonable wear and tear excluded. Landlords who fail to adhere to these requirements are subject to a strict liability penalty of three times the security deposit funds held, 5 percent interest, plus the tenant’s reasonable attorneys’ fees in an action to recover the security deposit. Many landlords unknowingly and innocently violate provisions but nevertheless find themselves subject to the statute’s penalties.

Landlords should be careful to avoid lease provisions that conflict with the law. The Supreme Judicial Court recently answered two questions concerning provisions in a residential lease that conflicted with Massachusetts law. In Peebles v. JRK Property Holdings, Inc., the SJC addressed: (1) under what circumstances does a landlord who charges a tenant for painting, carpet repair, or similar refurbishment violate the “reasonable wear and tear” prohibitions in the statute; and (2) does a lease that includes a requirement that the tenant have the leased premises professionally cleaned or bear the costs of such professional cleaning from security deposit funds violate the statute? 

The Court confirmed that the language about “wear and tear” in the statute is clear and unambiguous, but a factual determination must be made as to which repair charges are valid and which violate the statute. A landlord needs to assess, among other things, the nature and cause of damages, the condition of the property at the lease’s commencement, and whether deterioration of the conditions are reasonable, normal wear and tear, or something more.  The Court held that the provisions of the JRK Property Holdings lease that mandated the tenant pay for professional cleaning and painting or have those charges deducted from the security deposit violate the clear language of the Massachusetts statute. The linking of the tenant’s responsibility to the security deposit was improper. The SJC did not opine whether a requirement that a tenant pay for professional cleaning, so long as there was an exemption for normal wear and tear, was permissible.

Landlords may require tenants to return the premises to the condition in which they found, but there must be an exception for reasonable wear and tear.  Clearly, in Massachusetts, a landlord who seeks to saddle a tenant with costs and tasks from security deposit funds that address reasonable wear and tear runs the risk of violating the law. 

A Co-chair of REBA’s Residential Landlord/Tenant Section, George is a lawyer at the Boston firm of Rudolph Friedmann LLP, with an active litigation practice representing landlords in disputes with tenants, bringing actions or defending against claims in business disputes, and representing buyers and sellers of commercial enterprises such as restaurants, shops and professional offices. Fluent in Greek, Russian and French, George can be contacted at ggeorgountzos@rflawyers.com.