Easements

SJC Gives Country Club A Mulligan From $5 Million Jury Award In Errant Golf Ball Case

by Rich Vetstein on January 17, 2023

in Easements, Massachusetts Real Estate Law, Premises Liability, Real Estate Litigation, Safety, Trespass

High Court Rules That Trial Judge Improperly Instructed Jury On Golf Course Property Easement, Covenants and Restrictions

Credit: Boston Globe

In a case which has received national attention and a People Magazine article, the Supreme Judicial Court has overturned a jury’s award of $5 Million to a family whose home overlooking the 15th hole at the Indian Pond Country Club in Kingston was pelted by hundreds of errant golf balls. Erik and Athina Tenczar brought the lawsuit against the Indian Pond Country Club in Plymouth Superior Court, claiming that duffers shanked over 700 wayward golf balls off the 15th tee, peppering their home, breaking windows, and tormenting their family for years without an acceptable solution from the club. A jury agreed, awarding the couple an eye dropping $3.4 Million in emotional distress damages, plus another $1.6M in property damage with interest.

The massive jury verdict had many real estate attorneys and golf enthusiasts scratching their 9-irons, with online comments ranging from “what did they expect living next to a golf course” to “the club did not do enough.” In an eagerly awaited decision, a unanimous Supreme Judicial Court struck down the jury verdict. The justices ruled that the trial judge misinterpreted the covenants and restrictions governing the golf course home community, and that he incorrectly instructed the jury on those rules which gave the club an easement allowing for the “reasonable and efficient operation” of a golf course in a “customary and usual manner.”

Justice Scott L. Kafker, who wrote the opinion, acknowledged that golf is a game of misses and errors:

“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game. They demonstrate the difficulty and challenge of the sport even for the very best players,” Kafker wrote. “Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in [this] case — golf shots go awry, as a matter of course.”

It’s hard to say whether the jury, if properly instructed on the scope of the covenants, restrictions and easements, would have come to the same result. The Tenczar’s presented the jury with evidence that over 700 flying balls shattered windows in their house with such force they sent glass spraying into the next room; the siding on the house was peppered with circular dents. The couple say they anticipated putting up with some amount of sound and distraction from living along a golf course. But they were not prepared for the extent, frequency, and intensity of all of it . . . Honestly, if you have all these houses on a course, I assumed it was safe,” Athina Tenczar told the Boston Globe. The club made several modifications to the 15th hole to encourage golfers to hit shots away from the Tenczer home, but they did not install protective netting.

While owning a home on a golf course comes with the inherent risk that errant golf balls will come onto property, the Tenczars will get to tee up their case another time before a jury. That is, if they aren’t able to settle the case with the club. Perhaps that’s the best way to an “even par” result. The case is Tenczar v. Indian Pond Country Club, Inc., 491 Mass. 89 (Dec. 20, 2022), embedded below.

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Footprints In The Sand: Massachusetts Beach Access Law

by Rich Vetstein on July 20, 2012

in Adverse Possession, Boundaries, Easements, Massachusetts Real Estate Law, Public Accommodation, Trespass

“My life is like a stroll on the beach…as near to the edge as I can go.”

— Henry Thoreau

No Massachusetts summer is complete without some good times spent on the beach, be it on Cape Cod, Ipswich, or Duxbury. But what happens when you are taking a nice stroll on the beach and hit one of those “No Trespassing — Private Beach” signs? Can you continue walking? Can you walk on the water’s edge or wet sand? What about swimming, fishing or boating? Most folks are unaware of Massachusetts’ archaic beach access laws, and I will try my best to explain them in this post.

Origins To Colonial Days:  General Rule, No Public Access To Private Beach Areas

Massachusetts has a unique set of laws giving coastal property owners more extensive private rights to beachfront area than other states. In most coastal states, there is unlimited public access to beachfront areas and you can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas have been established.

The origin of this law dates back to the Mayflower days. In order to facilitate coastal development, under the Colonial Ordinances of 1641-47, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the average or mean high water mark and the low water mark (up to 100 “rods,” or 1,650 feet, from the high water mark) to all private coastal landowners. The land—but not the water—between the two tide marks is known as “private tidelands.” This typically includes all of the wet sand area on beaches.

The general rule is that with some limited exceptions explained below, beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.

Limited Public Beach Access Between Low and High Tide Area for “Fishing, Fowling and Navigation”

The Colonial Ordinance reserved three specific and important rights of public use within the private tidelands for “fishing, fowling and navigation.” Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)

Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in “fishing, fowling, or navigation.”

These antiquated Massachusetts beach access laws have created many disputes between public beach-goers and wealthy coastal property owners who have attempted to enforce a “private beach” regime. Under the Colonial Ordinance, no private property owner may deny access to someone who is fishing or hunting for birds or even surfing or launching a kayak. Indeed, knowledgeable beach-goers are often seen walking with beach with fishing rods in hand or shellfish equipment, so as to claim access rights under the Colonial Ordinance.

What About Swimming?

Swimming rights are a bit confusing. According to the courts, swimming in the intertidal zone is included within the reserved public right of navigation, but only so long as your feet don’t touch the bottom! And you don’t have a right to walk along the wet sand area solely for the purpose of gaining access for swimming. So basically you have the right to swim into a private beach area provided you continue to swim and don’t stand or walk into the private tidelands zone. So try not to drown..

Can I Walk Below the Low Tide Line?

Yes, private property owners cannot interfere with the public’s right to walk along the submerged lands that lie seaward of the low tide line. With few exceptions, they don’t own that land; the public does. But this is tricky because the mean low tide area is seldom marked and changes historically.

I own beachfront property. I don’t mind the public walking along my wet sand area even if they are not “fishing, fowling, or navigating,” so long as by allowing this, I don’t lose any property rights in the process. Is there some way that I can be a ‘good citizen’ and still retain my property rights?”

Yes. What you appear to be worried about is the legal concept known as “prescription” or “adverse possession.” I have written a detailed post on adverse possession here. This is the idea that if someone uses your property for a sufficiently long time, they may be able to claim a property interest in it. For someone to be able to make this claim, however, their use has to be without your permission. Therefore, openly allowing the public to walk across your land (e.g., by “posting” such permission) is usually the best way of defeating someone’s ability to accrue such a right. Posting the land in this manner, of course, would not affect any access rights that anyone had already obtained before the posting.

Under existing state law, a property owner who allows the public to use his or her land for recreational purposes without charging for such use is shielded from liability for injuries sustained during that use so long as the property owner did not act with such “fault” that his or her conduct constituted “wilful, wanton or reckless conduct.”

*******

Well, that’s it on the rather complicated topic of Massachusetts beach access law. Enjoy your beach day and perhaps start carrying a fishing rod or line when you take a long walk!

More Helpful Resources:

Massachusetts Coastal Zone Management Fact Sheet

FAQs on Beach Access By Trisha Daly-Karlson

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous adverse possession and beach access cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts real estate dispute.

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Everything You Wanted To Know About Massachusetts Easements, But Were Afraid To Ask

by Rich Vetstein on April 18, 2012

in Easements, Massachusetts Property Values, Massachusetts Real Estate Law, Title Defects

Utility, Gas Pipeline, Access, Drainage & Prescriptive Easements, and More!

When you are considering purchasing a home in Massachusetts, the property may have the benefit or burden of an easement. Most easements and restrictions are quite “harmless” and standard, however, some can have a major impact on future expansion possibilities and the right to use portions of the property. In this post, I’m going to go through the most common types of easements and how they can affect the value and use of your property.

What Is An Easement?

In plain English, an easement is a right that another person or company has to use your property. They don’t own your property, but the easement gives them the legal right to use your property as specified in the easement instrument. The property that enjoys the benefit of the easement is sometimes referred to as the “dominant estate,” and the property over, under, or through which the easement runs is sometimes referred to as the “servient estate.” Easements are usually recorded in the registry of deeds, but sometimes they can arise from “implication” or “by necessity.” I’ll explain those later.

Utility Easements

The most common types of easements in Massachusetts are utility easements for such things as overhead and underground power lines, cable lines, gas lines, and water mains. These easements allow the utility companies to use portions of residential property to provide their respective utility services. Sometimes, the easements will show up on a plot plan or survey, and some will be found recorded in the title, usually when the lot was first laid out. The majority of these easements do not materially affect the use and expansion of your property, however, the one type of easement to take note of are high pressure gas line easements.  For obvious safety reasons, these easements usually carry with them strict restrictions on what can be built on or near them. Here is a good article on gas pipeline easements, albeit from Pennsylvania, but the law is generally the same here.

Driveway or Access Easements

Another common type of easements that are found in Massachusetts are access easements for driveways and the like. Properties with shared driveways will often have easements enabling such sharing– or they should! These easements should also provide for common maintenance and upkeep responsibilities and expense. Other types of access easements include walking and bike paths and beach access – very common down the Cape and on the Islands.

Drainage Easements

Another common type of easements are drainage easements which are typical for newer subdivisions. Drainage easements allow for one lot to drain its storm water onto another or into a detention pond.

Prescriptive Easements

If you have heard of adverse possession, then you know what a prescriptive easement is all about. An easement by prescription is an easement acquired through adverse possession – which is the hostile adverse use of someone else’s property for 20 or more continuous years. Prescriptive easements arise where people have acted as though an easement has existed but there is no instrument of easement recorded at the registry of deeds. For example, a prescriptive easement can arise if a neighbor’s family has used a walking path on the neighbor’s property for over 20 years. twenty years. I’ve written extensively on adverse possession in this post.

Easements by Implication and by Necessity

An easement by implication is found in the law when there is no recorded easement, but where the circumstances show an easement was intended to exist. It usually exists where there is common ownership of a lot, the seller conveys a portion of the land under current ownership, and both parties intended to create an easement at the time of conveyance. If someone claims an easement by implication which negatively affects one’s property, the owner’s title insurance policy, if any, will typically cover that situation. Easements by necessity occur when a property is sold in a land-locked configuration without any legal access. An easement is therefore created “by necessity” to prevent the land-locking. An adverse easement by necessity would also be covered by an owner’s title insurance policy.

________________________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. They can be reached by email at [email protected] or 508-620-5352.

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Driveways, Drainage, and Dirt Paths, Oh My! Massachusetts Easements Explained

by Rich Vetstein on April 17, 2012

in Easements, Massachusetts Property Values, Massachusetts Real Estate Law, Permitting/Zoning, Premises Liability, Safety, Title Defects, Title Insurance

When you are considering purchasing a home in Massachusetts, the property may have the benefit or burden of an easement. Most easements and restrictions are quite “harmless” and standard, however, some can have a major impact on future expansion possibilities and the right to use portions of the property. In this post, I’m going to go through the most common types of easements and how they can affect property.

What Is An Easement?

In plain English, an easement is a right that another person or company has to use your property. They don’t own your property, but the easement gives them the legal right to use your property as specified in the easement instrument. The property that enjoys the benefit of the easement is sometimes referred to as the “dominant estate,” and the property over, under, or through which the easement runs is sometimes referred to as the “servient estate.” Easements are usually recorded in the registry of deeds, but sometimes they can arise from “implication” or “by necessity.” I’ll explain those later.

Utility Easements

The most common types of easements in Massachusetts are utility easements for such things as overhead and underground power lines, cable lines, gas lines, and water mains. These easements allow the utility companies to use portions of residential property to provide their respective utility services. Sometimes, the easements will show up on a plot plan or survey, and some will be found recorded in the title, usually when the lot was first laid out. The majority of these easements do not materially affect the use and expansion of your property, however, the one type of easement to take note of are high pressure gas line easements.  For obvious safety reasons, these easements usually carry with them strict restrictions on what can be built on or near them.

Driveway or Access Easements

Another common type of easements that are found in Massachusetts are access easements for driveways and the like. Properties with shared driveways will often have easements enabling such sharing– or they should! These easements should also provide for common maintenance and upkeep responsibilities and expense. Other types of access easements include walking and bike paths and beach access – very common down the Cape and on the Islands.

Drainage Easements

Another common type of easements are drainage easements which are typical for newer subdivisions. Drainage easements allow for one lot to drain its storm water onto another or into a detention pond.

Prescriptive Easements

If you have heard of adverse possession, then you know what a prescriptive easement is all about. An easement by prescription is an easement acquired through adverse possession – which is the hostile adverse use of someone else’s property for 20 or more continuous years. Prescriptive easements arise where people have acted as though an easement has existed but there is no instrument of easement recorded at the registry of deeds. For example, a prescriptive easement can arise if a neighbor’s family has used a walking path on the neighbor’s property for over 20 years. twenty years. I’ve written extensively on adverse possession in this post.

Easements by Implication and by Necessity

An easement by implication is found in the law when there is no recorded easement, but where the circumstances show an easement was intended to exist. It usually exists where there is common ownership of a lot, the seller conveys a portion of the land under current ownership, and both parties intended to create an easement at the time of conveyance. If someone claims an easement by implication which negatively affects one’s property, the owner’s title insurance policy, if any, will typically cover that situation. Easements by necessity occur when a property is sold in a land-locked configuration without any legal access. An easement is therefore created “by necessity” to prevent the land-locking. An adverse easement by necessity would also be covered by an owner’s title insurance policy.

________________________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. They can be reached by email at [email protected] or 508-620-5352.

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