Deed restrictions & easements

[Pinewood]

What is the name of your state? Massachusetts

I am also dealing with an easement/right of way, but that is not my question. The reason I am asking is to see if maybe I could force a hand and make them give up their rights to their right of way.

On their original deed there is a restriction as to what can be built. It is as follows:

"In consideration of said grant (the right of way) I (the buyer from 1903)for myself and my heirs and assigns hereby agree with the said (developer from 1903), that I will not use said Lot for any purpose other than the erection and maintenance of a private dwelling house: that at no time shall I, my heirs or assigns ever maintain more than one private dwelling house...."

Well......there is a 2 1/2 story garage on this lot of land. If you are wondering why I would like to play their hand, these things have happened to us over a 15' wide right of way (this right of way is not used as their driveway, they have a separate entrance, it is only used now for underground pipes. This piece of property originally was to be landlocked, but the rest of the developement was never built. Their entrance is off of a public parking lot.

1. I have read here a few times the police department will not have anything to do with private roads. The traffic sargent showed up at my door and told me that I could not park on the right of way any longer. Who wants to argue with the police department?

2. They will try to harrass us by driving through this right of way (it is about 4 feet from my house) and is part of my lawn. Spring is coming and this will start up again.

3. They will pick up my hose and throw it on my flowers as it will be in the right of way.

And the list could go on..

The wording on the right of way from 1903 is:

"their will and pleasure to go, return, pass and re-pass with horses, carts, wagons and other carriages laden or unladen and also to drive cattle and other beasts in, through, along and over said way."

To the person in Rhode Island asking about parking on the right of way.....they cannot block your access......meaning you own to the middle of the road, or as me, I own both sides of the easement, so I actually own that part of the whole easement to the lot line, however, I cannot block access.

So my question would be, if the right of way from 1903 still holds true, would the restriction on private dwelling houses also still hold true?

Thank you for your help in this matter.What is the name of your state?

 

[danggoods]

When was the garage built? If it has been there longer than your states statute of limitations you wont be able to force their hand to move it or consider another deal. Look for building permits at your municipality or county recorder. Here in Missouri there is the Sunshine Law that makes building permits a matter of public record. Go to City Hall, request a copy; should be a survey, final site plans, measurements from prop. line. There are also setback laws requiring a certain distance between your ( or rather "their" building) and the property line. Find out if they are in violation of those set backs and what your options are.

In all due respect to the Police Department, any Police Department, they will enforce a court order but can do very little on private property. You will most likely be told that it is a civil matter unless some blatant law is being broken or a safety code violation is occuring. Get a court order and they will probably back you up.

 

[Pinewood]

Thank you for your answer, but I'm wondering if you misunderstood my question which would be:

If there was a restriction on the original deed for "for myself and my heirs and assigns" for only a dwelling house, why would this restriction by any different for say, rights to a right of way, which also has the "for myself and my heirs and assigns" restriction?

To me, now I am not a real estate lawyer, I can't see how one restriction could stand for over a hundred years and one not.

 

[seniorjudge]

Q: If there was a restriction on the original deed for "for myself and my heirs and assigns" for only a dwelling house, why would this restriction by any different for say, rights to a right of way, which also has the "for myself and my heirs and assigns" restriction?

A: Both restrictions are still probably valid; a court will have the final say.

 

[Mrs Bridges]

I am confused.....

Are you saying that they are in violation of their deed because they have erected a 2½ story garage which was not specifically mentioned in the deed as being allowed?

And is it your intent to approach them and say, "Your garage is in violation, but I will agree to it if you will give up your rights to the right of way easement?"

 

[Pinewood]

And is it your intent to approach them and say, "Your garage is in violation, but I will agree to it if you will give up your rights to the right of way easement?"

Yes, that was what I was wondering. I could go on and on with the harrassment these people have put us through over this right of way (one example, they did not like the answer the town lawyer gave them, which was it was a civil matter and the town would not get involved, they came home and ripped up our part of the easement with his four wheel drive truck. When I asked the wife how old she was and what her problem was, he called the police on me stating I was harrassing his wife......I should state I am a woman).

I cannot understand where their anger comes from......I think it because we tore down the old house, built a new one (same foundation) and now their house is the only house in shambles.

So I will take any leg I can stand on when it comes to these people.

 

[Mrs Bridges]

I am not a lawyer, but I, too, have had ROW easement problems, and I feel your pain. I am happy to share some of the knowledge I have acquired through extensive research, as well as consultation with several lawyers. This has been in the state of Maine.

Let's start with the 1903 wording for the right of way. Notice that no mention is made of automobiles, trucks, motorcycles, etc. According to Wikipedia, by 1900 mass production of automobiles had begun in the United States. ( However, most families did not own one at that time.) My research has shown that even though automobiles were not mentioned in the ROW, they are a natural development from the horse & cart conveyances which were the main source of transportation back in the day. Many landowners are burdened with old ROW's which only mention teams and carts, and all the Court cases I have read, have allowed cars to be used.

Now for the garage. Using the same reasoning as above, it could be interpreted that a garage is now considered to be a standard part of a single family dwelling. So I think you would have a hard time using that as leverage. By all means ask a local real estate atty, but I think it is a long shot. When the courts rule on cases like this, they try to discern the "intent" of the original grantor. In your situation, Mr. Original Grantor is probably long dead, so he ain't talking.

From your post, it seems likely that Mr. Original Grantor was trying to prohibit any kind of commercial endeavor on the property (which would increase the burden on the ROW), and also to prohibit any kind of multi-family situation.

That said, your neighbor would be overburdening the easement if, for example, he has people living on the second floor over the garage. Then you could argue that the garage is no longer just a garage, but also an apartment. He also could not use the garage for a small business such as repairing cars because that would subject the ROW to commercial use.

The original deed mentions animals, and so I wonder where these animals would have been kept. A barn or a shed is not mentioned. I can't imagine that these animals would not have had some kind of shelter. So unfortunately, this is another argument on your neighbor's side -- that his garage is simply an updated barn -- housing his cars in the same way that Mr. Old Timer's animals would have been housed.

Good luck. I personally understand that this is not a fun situation for you.