Early each morning the neighbor from down the street walks his dog over the side edge of your lawn to get to the park that abuts your backyard. During the school year some students cut over the same side edge of your lawn to get to the school on the opposite side of the park from your yard. This has been happening since you bought your house 8 years ago and may have been occurring before you purchased the house. Does the dog walker have the right or easement to cross your yard? What about the students of the school that is located across the park? You do not want to fence your yard since you like the openness of your yard running seamlessly into the park.
Your concern is that the dog walker and/or the students may acquire an easement over your land by prescription. An easement by prescription is obtained over the land of another by the actual, open, notorious, adverse (to the owner), and continuous use of the easement area for twenty years. If the twenty years of use has not occurred, the acquisition of such an easement may be prevented by a Notice to Prevent Acquisition of Easement as provided by Sections 3 and 4 of Chapter 187 of the Massachusetts General Laws. This law lays out a detailed procedure for the posting of a statutory notice near the easement area, service of the notice on certain parties by deputy sheriff and recording of proof of compliance with these requirements in the appropriate Registry of Deeds. By doing so, the persons who might claim an easement by prescription, such as the dog walker and/or the students, would then need to bring an action to prove their acquisition of an easement. If no action is commenced, the dog walker and students lose their right to establish an easement by prescription.
The advice of an experienced real estate attorney is vital to ensuring that the proper steps to prevent the acquisition of an easement are followed. Please contact Frank Ravinal for more information on this topic and other real estate matters.