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Rackemann Prevails in Massachusetts’ Highest Courts on Behalf of Clients in Two Complex Easement Cases

Boston law firm Rackemann, Sawyer & Brewster recently prevailed in Massachusetts’ highest courts on two complex real estate easement cases involving property on Cape Cod and Martha’s Vineyard.

Cape Cod Beach Property – Brown, et al v. Kalicki, et al

In Brown, et al v. Kalicki, et al, Brian Hurley, a Director in Rackemann’s Litigation Department, represented plaintiffs Peter R. Brown and others in a case involving prescriptive easement claims over accreted portions of a Cape Cod beach. The plaintiffs own three parcels of land in the town of Harwich, all of which were registered to the low water mark of Nantucket Sound. Over time, the shoreline changed, and the parcels accreted significant portions of beach that had been submerged land. The parcel owners filed supplemental petitions in Land Court, seeking to amend their certificates of title to address the new locations of the boundaries with their abutters. Jan H. Kalicki and John Michael Hershey, who are not abutters, moved to intervene as defendants, alleging that they had acquired prescriptive rights over the accreted beach. One benefit of registered land is that it is immune from prescriptive easement claims. The question at hand was whether the accreted beachfront took on the status of registered land as it formed, or whether registered status could be obtained only through court proceedings to amend the certificates of title. The court ruled that the accreted beachfront became registered land as the location of the low water mark changed, and, therefore, was protected from the intervenors’ claims that they have a prescriptive easement to use the new beach area on the plaintiffs’ land. As a result of this decision, owners of registered beach property generally no longer need be concerned about prescriptive easement claims over accreted portions of a beach.

Martha’s Vineyard Property – Taylor v. Martha’s Vineyard Land Bank Commission

In Taylor v. Martha’s Vineyard Land Bank Commission, Gordon Orloff, Counsel in Rackemann’s Litigation Department, represented the owners of the Outermost Inn in Aquinnah. The inn property is subject to an easement that the Martha’s Vineyard Land Bank holds to reach three parcels of land that it owns. The dispute arose because the Land Bank sought to use the easement for public access, not only to those three parcels, but to a fourth parcel of land that was not benefitted by the easement and which had its own, deeded access easement via a different route. Rackemann argued successfully that the Massachusetts Supreme Judicial Court (SJC) should use a bright-line test prohibiting any use of an easement created to reach specific parcels of land as access to another parcel without those easement rights, even if one party owns both parcels. The SJC preferred the bright-line rule championed by Rackemann because it “provides owners of servient property with certainty regarding their … rights.”


This article first appeared in Cape Cod Today, November 30, 2016.

Posted In: News