MISC 397190

August 6, 2009


Long, J.


Introduction and Facts

On April 11, 2008, plaintiffs Diane and John Bradley deeded the vacant registered parcel at 149 Grove Street in Westwood (Lot 39 on Land Court Plan 17929 P) to defendant Stonecroft Properties, Inc. free and clear of any easements, encumbrances or encroachments. [Note 1] Deed (Jan. 24, 2008) (part of Trial Ex. 26, the closing documents from the April 10, 2008 conveyance); Transfer Certificate of Title (Apr. 11, 2008) (Trial Ex. 16). Contrary to the plaintiffs’ representations in the Purchase and Sale Agreement, [Note 2] however, there was an encroachment on Lot 39. The plaintiffs own the abutting property at 148 Grove Street (Lot 38, which also is registered land) and the underground sewer line from their residence on Lot 38 to the town’s sewer line in Grove Street cuts across the front of Lot 39. [Note 3] See Decision Sketch. Even though it is underground, the encroachment is significant. It stretches across nearly half of Lot 39’s frontage and is in an area likely to be landscaped (fences, walls, trees or bushes) to screen the house on Lot 39 from the road. [Note 4]

The defendants discovered the existence of this encroachment after the Purchase and Sale Agreement was signed, but prior to the closing and raised the issue with the plaintiffs. E-mail from Roberto DiMarco (Stonecroft’s counsel) to Steven Ross and Mark Savage (plaintiffs’ counsel) (Mar. 10, 2008) (Trial Ex. 3). The parties’ attorneys discussed the granting of an easement and “agree[d] to work[] together to have a sewer line access easement finalized and recorded in the chain of title . . . after the closing.” E-mail from Roberto DiMarco to Steven Ross and Mark Savage (Apr. 7, 2008) (Trial Ex. 5). But none of the terms of such an easement were ever discussed, much less agreed upon by all parties. [Note 5] Moreover, the parties had very different understandings of the conditions for such an agreement. [Note 6]

No easement has been granted. Neither the final deed nor the certificate of title mentions or references a sewer line easement or, for that matter, an easement of any kind to benefit the plaintiffs’ property. [Note 7] The closing memorandum contains an ambiguous reference to an easement recording fee, but the parties sharply differ on what easement it references. [Note 8] Trial Ex. 14 (“easement recording fee”). The plaintiffs appear to have forgotten about the easement issue after the closing took place and took no actions of any kind until the defendants served them with a notice of trespass over five months later. Letter from Robert Berluti (defendants’ counsel) to Arnold Cohen (plaintiffs’ counsel) (Oct. 7, 2008) (Trial Ex. 6) (citing to a September 19, 2008 letter that notified the plaintiffs that they were trespassing). [Note 9]

The plaintiffs filed this action in response to that notice, seeking reformation of the parties’ certificates of title to reflect a sewer easement on Lot 39 for the benefit of Lot 38. They also seek a permanent injunction prohibiting the defendants from interfering with their sewer line. Two arguments are advanced in support of these requests. First, the plaintiffs claim an easement by implication, arguing that the requisite intent is presumed “because it . . . stands to reason that a common owner would not sell one of his lots and leave himself in a position where the buyer, or a successor, could deprive him of the right to use his sewer connection.” Plaintiffs’ Post-Trial Memorandum of Law at 3 (Jun. 4, 2009). The fact that they conveyed registered title to the defendants without the certificate noting any easement, they say, does not prevent their requested relief because “the defendants were aware of the plaintiffs’ claim to an easement for the disputed sewer line prior to the closing.” Id. at 6. The plaintiffs also claim that the parties had an enforceable agreement for such an easement.

The defendants disagree. They deny that an easement by implication exists because the parties explicitly addressed the issue and never reached agreement (i.e., the parties’ intent is known and thus cannot be the subject of implication, particularly when it would result in one side achieving what it was unsuccessful in negotiating). Consistent with this, they deny that an easement agreement was ever reached, both because there was never agreement on essential material terms and because any such easement (involving an interest in land) would have to be memorialized in a writing that meets the requirements of the statute of frauds, G.L. c. 259, § 1, in order to be enforceable.

The case was tried before me, jury-waived. For the reasons set forth below, based upon the parties’ stipulation of facts, the agreed exhibits, the testimony and additional exhibits admitted into evidence at trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that the plaintiffs do not have an easement for their sewer line across Lot 39 by implication, by necessity, or by agreement. [Note 10] The plaintiffs’ requests for reformation of the certificates of title to reflect such an easement and for a permanent injunction prohibiting interference with the sewer line are DENIED.


Despite Mrs. Bradley’s testimony to the contrary, I find it difficult to believe that the plaintiffs did not know their sewer line encroached on Lot 39 at the time they entered into the Purchase and Sale Agreement in January 2008. The two lots were laid out in November 2002 and endorsed by the Westwood Planning Board on May 5, 2003. Land Court Plan 17929P (Trial Ex. 18). The plaintiffs’ sewer line was constructed in December 2006 or early 2007 and the 2007 “Sewer As-Built” plan clearly shows its encroachment onto Lot 39. Sewer As-Built #148 Grove Street in Westwood, MA by Toomey-Munson & Associates, Inc. (Feb. 22, 2007) (Trial Ex. 12). The contractor who designed and installed the sewer line testified that Mrs. Bradley herself told him an easement would be required for the sewer line to be placed in that location. Trial Testimony of Thomas Bean. The contract proposal he sent to Mrs. Bradley also references the need for an easement. Trial Ex. 14A at 2 (Sept. 7, 2006). Whether the plaintiffs remembered the encroachment or not, it is undisputed that they did not disclose it to the defendants at the time the Purchase and Sale Agreement was negotiated. Trial Ex. 1 at 49.b (representation that there were no encroachments “unless the subject of a duly recorded easement”). The terms of that Purchase and Sale Agreement clearly would have been different had the disclosure been made, including a provision directly addressing (rather than denying) the encroachment with likely either a reduction in the $550,000 purchase price or some other compensatory provision.

The defendants discovered the encroachment soon after the Purchase and Sale Agreement was signed. See Trial Ex. 2 (e-mail from Roberto DiMarco to Mark Savage); Trial Testimony of Frederick Tonsberg (testifying that he was informed of the encroachment by his site engineers); Trial Ex. 20 (February 20, 2008 site plan prepared by the defendants’ engineers, showing plaintiffs’ sewer line). Their attorneys immediately brought it to the attention of the plaintiffs’ attorneys and discussions about an easement then ensued. Trial Exs. 2-3.

It is important to note that a sewer easement would be advantageous for the plaintiffs, but not a necessity. The plaintiffs’ engineers originally proposed to locate the sewer line entirely on the plaintiffs’ lot, connecting to the town’s sewer line in Grove Street directly in front of Lot 38. Trial Ex. 19. The plaintiffs decided against that location solely for financial reasons. [Note 11] They are physically able to relocate their sewer line so that it does not traverse any portion of Lot 39. Agreed Facts at 24.

The plaintiffs’ chief argument in support of their claim for a sewer easement across Lot 39 is that such an easement exists by implication. For this proposition they cite Flax v. Smith, 20 Mass. App. Ct. 149 (1985), and the authorities cited therein. But the relevant facts of Flax do not apply to this case. To be sure, Flax involved three lots that were once in common ownership (the Flax lot and two others), the installation of sewer and water lines over the tip of a corner of one of the lots to a home on the Flax lot, the subsequent severance of the Flax lot from common ownership without the express reservation of an easement, [Note 12] and a finding of an implied easement. Flax, 20 Mass. App. Ct. at 150-52 (including the Sketch at 151). But crucial to that finding are three factors that are all absent here.

First, the easement in the Flax case benefited the severed lot. Id. It did not burden that lot. It is one thing to imply the grant of an easement that benefits the owner of the severed lot (as in Flax) and quite another to imply an easement that imposes a burden on that owner (as is the case here). Second, the trier of fact in Flax found a “reasonable necessity” for the continued use of the existing lines based on the presence of three to ten feet of ledge on the property and the expense of drilling through that ledge to relocate the lines. Id. at 152. There is no such “reasonable necessity” here. The plaintiffs knowingly located the sewer line across Lot 39. There is no physical impediment to relocating that line and the expense of relocation is no more (and quite possibly far less) than what the plaintiffs initially saved by encroaching on Lot 39. [Note 13]

Third and finally, the Flax holding depended upon “a presumed objective intent of the grantor and grantee based upon the circumstances of the conveyance” (a tax taking by the City of Boston) since a voluntary purchaser of the property would have insisted upon getting the benefit of an easement and, as a matter of public policy, a tax-taking authority should not receive less. Id. at 153-54 (emphasis added). Here, there is no need for any presumption since the parties were both aware of the necessity for an easement (particularly in light of the fact that both parcels are registered land), never reached an agreement, and were willing to complete their transaction with the risk that they might never come to agreement. The plaintiffs, as the parties that would benefit from the easement, knowingly went to closing without an executed agreement regarding the easement. To be sure, the parties did intend to cooperate after the closing to finalize an easement, but such cooperation and agreement never materialized. The presumption that the plaintiffs now ask this court to find would give them the benefit of a valuable easement without any payment whatsoever. [Note 14] For all these reasons, no implied easement exists.

The plaintiffs’ second argument is that the parties explicitly agreed to an easement and that sufficient consensus existed for me to imply any missing terms. See McCarthy v. Tobin, 429 Mass. 84 , 87 (1999). The facts show otherwise. As noted above, both parties were aware of the need for a sewer easement if the plaintiffs’ sewer line encroachment was to remain in place. See Trial Exs. 2-5. It is fair to say that both parties expected that they would ultimately reach an agreement. Indeed, their final pre-closing communication on the subject stated, “as Steve requested, this confirms my client’s agreement to working together to have a sewer line access agreement finalized and recorded in the chain of title for the Grove Street property after the closing.” Trial Ex. 5. The important words in that communication, however, were “working together.” Defendant Frederick Tonsberg, who reviewed and approved the wording of that e-mail before it was sent, emphasized this. “Working together” did not mean to him that he “will provide” an easement without first agreeing to its terms. Trial Testimony of Frederick Tonsberg. I agree with Mr. Tonsberg’s interpretation. As already noted, many material terms of that easement had yet to be discussed, much less agreed upon by all parties. See note 5, supra.

Furthermore, the agreement to “work[] together” presumed good faith on both sides. Mr. Tonsberg had every right to expect that this would include the plaintiffs’ cooperation with the defendants’ application for a building permit and the plaintiffs’ provision of construction financing, as the parties negotiated and agreed to in the Purchase and Sale Agreement. Purchase & Sale Agreement at 38, 41 (Trial Ex. 1). Mr. Tonsberg is a small developer and, as he testified, he never would have purchased the property without an assurance of both. [Note 15] The plaintiffs never provided construction financing and, far from cooperating with the building permit application, Mrs. Bradley opposed the defendants’ variance application, both before the Westwood Zoning Board of Appeals and, after it was granted, in superior court pursuant to a G.L. c. 40A, § 17 appeal. Given the topography of Lot 39, its ledge, and its hourglass shape (a shape created by the plaintiffs themselves), the plaintiffs hardly could be surprised at the proposed location of the house on Lot 39. The delay and expense that the plaintiffs’ actions caused (the defendants ultimately found a way to build without a variance, but at considerable additional cost), plus the cost of finding alternative financing after Mrs. Bradley’s father refused to provide it, brought the defendants close to bankruptcy and forced them to sell the property on distress-sale terms.

Even if I were to find an agreement for an easement existed, this is not a situation where I can imply the missing easement terms by “norms which exist for their customary resolution.” McCarthy, 429 Mass. at 87. Easement terms vary greatly and each of the missing terms (width, permitted uses in the easement area, circumstances allowing surface access, restoration standard) would have been the subject of detailed negotiations between the parties, whose interests strongly differ. Such material and essential terms are not “subsidiary matters” and therefore no agreement to be bound existed. Id. at 86-87.


For the foregoing reasons, I find and rule that the plaintiffs do not have an easement by implication, by necessity, or by agreement. I also find and rule that defendant Stonecroft Properties, Inc. acquired title to Lot 39 from the plaintiffs free and clear of any such claims. The plaintiffs’ requests for reformation of the certificates of title and for a permanent injunction prohibiting interference with the sewer line are DENIED. Since the plaintiffs’ claims are hereby DISMISSED, in their entirety, the Memorandum of Lis Pendens shall be DISSOLVED. Judgment shall enter accordingly. [Note 16]


Keith C. Long, Justice

Dated: 6 August 2009


[Note 1] Defendant Frederick Tonsberg is Stonecroft’s President, Treasurer, Secretary and Director.

[Note 2] The purchase and sale agreement, signed some months prior to the closing, contained the plaintiffs’ representation that “[n]o buildings, structures or improvements of any kind belonging to any other person or entity shall encroach upon or under the said Premises, unless the subject of a duly recorded easement and do not prohibit or materially interfere with the current use of the premises . . . .” Purchase and Sale Agreement at 49.b (Jan. 2008) (Trial Ex. 1).

[Note 3] The sewer line was installed when the plaintiffs owned both lots. As more fully explained below, it was placed in that location not by necessity, but as a money-saving measure.

[Note 4] The sewer line (a six-inch PVC pipe) is approximately four feet below the surface of Lot 39. Trial Testimony of Thomas Bean. While routine maintenance of the sewer line might not require access from the surface (digging), both repairs and the inevitable replacement of the sewer pipe as it ages likely will. Moreover, certain types of landscaping (tree roots, for example) may make leaks and breakage more likely.

[Note 5] The parties, for example, did not discuss or agree on an adjustment to the purchase price, the width of the easement, what the respective parties could do in the easement area, the circumstances that would have to exist before access to the sewer line from the surface would be allowed, and the standard to which the surface would have to be restored in the event of such access (i.e., to its condition at the time the easement was created, its condition at the time the surface was disturbed, or something else). These were important issues for the defendants. Trial Testimony of Frederick Tonsberg.

[Note 6] Stonecroft (a small developer) purchased Lot 39 intending to construct and sell a single-family residence. Both a building permit and construction financing were critical components of the purchase. See Purchase & Sale Agreement at 38, 41. The defendants contend that their willingness to grant an easement was conditioned on the plaintiffs’ cooperation in connection with the building permit and on the plaintiffs’ providing the defendants with construction financing. Id. at 39-41. The plaintiffs contend that the easement grant had no such conditions. There is significant ledge on Lot 39, limiting the places where a home could be sited. The hourglass shape of the lot initially appeared to require a variance for such siting. Any prospect of further negotiations about the easement came to an abrupt and final end when the plaintiffs opposed the defendants’ variance application (both before the Westwood Zoning Board and, after the variance was granted, by filing and prosecuting a G.L. c. 40A, § 17 appeal in court) and when they refused to provide construction financing. Stonecroft was ultimately able to finance and build the home only at considerable additional expense, bringing the defendants close to bankruptcy.

[Note 7] An earlier draft deed may have contained a reference to a sewer easement, but what it said is unknown (the plaintiffs were unable to locate a copy and the attorney who drafted it (Mark Savage) has no memory of its contents) and the registry apparently refused to approve a deed containing such a reference unless it was accompanied by an actual easement agreement. See Trial Ex. 4. No such agreement was ever negotiated or reached and many material terms of such an agreement were never even discussed. See n. 5, supra.

[Note 8] The plaintiffs claim it referred to the sewer line easement. Trial Testimony of Mark Savage. The defendants believed it referred to an easement for an electrical line. Trial Testimony of Frederick Tonsberg.

[Note 9] Other pertinent facts are set forth in the analysis section below.

[Note 10] The plaintiffs do not (and cannot by virtue of the parcels being registered land) claim an easement by prescription. In any event, the sewer line (constructed in December 2006 or early 2007) has not been there for more than twenty years.

[Note 11] The sewer line from the plaintiffs’ residence, cutting across Lot 39 to Grove Street where it connects with the town line, is a straight gravity feed. See Decision Sketch (sewer line profile). In its original proposed location (entirely on Lot 38, connecting to the town sewer line directly in front of that lot), it would have had to travel uphill in order to connect with the town sewer line Trial Ex. 19 (Profile); Trial Testimony of Thomas Bean. The plaintiffs thus would have had to install a pump in order to transport their wastewater up to that line. All told, this would have cost approximately $100,000. By locating their sewer line across Lot 39, the plaintiffs’ sewer goes entirely down gradient and connects with the town line at a downward point. Trial Ex. 12. As a result, the plaintiffs avoided the need for a pump and other work and saved over $50,000. Trial Testimony of Thomas Bean and Diane Bradley.

[Note 12] The severance took place when the City of Boston acquired the Flax lot for non-payment of taxes. It subsequently sold the lot to Mr. Flax by public auction.

[Note 13] As previously noted, the plaintiffs saved over $50,000 by locating their sewer line on Lot 39. Their own witness, Thomas Bean, originally estimated that a relocation back onto the plaintiffs’ property might cost as much as $49,000 if a new “stub” was required to connect to the town sewer line, but conceded that the actual cost would be at least $13,000 less if a connection could be made to an existing stub. Trial Testimony of Thomas Bean.

[Note 14] As previously noted, the sale price ($550,000) was based on the plaintiffs’ representation that there were no encroachments on Lot 39 and neither the price nor any terms favorable to the defendants were ever adjusted as compensation for an easement.

The plaintiffs’ attorney testified that the plaintiffs never would have closed the transaction without absolute assurance they would receive an easement for their sewer line (Trial Testimony of Steven Ross), but I do not credit that testimony. The fact is that they did. There were no discussions or agreement on many of the material terms of such an easement, see n. 5, supra, and, as discussed below, the closing took place with the parties simply agreeing to continue working on the issue. I find that the plaintiffs went forward with the closing knowingly assuming the risk that those post-closing discussions might never result in an agreement and that they themselves were responsible for the breakdown in negotiations. The fact that they believed this risk to be minimal does not change the fact that they assumed it.

[Note 15] The defendants’ obligation to purchase Lot 39 was expressly contingent on them first obtaining a building permit. Trial Ex. 1 at 38. Site-related issues delayed this. To accommodate the plaintiffs’ request that the closing go forward (Mrs. Bradley had separated from Mr. Bradley, was not receiving support, and needed the money to pay her mortgage and other obligations), the defendants went ahead with the closing without a building permit in hand, relying on the plaintiffs’ cooperation. The defendants similarly relied on the provision of construction financing from Mrs. Bradley’s father, a wealthy private investor, in accordance with the Purchase and Sale Agreement. Id. at 41.

[Note 16] In light of my findings and rulings, I need not and do not reach any of the parties’ other arguments, including those regarding the statute of frauds and what the standard of proof for mutual mistake (clear and convincing evidence or a preponderance of evidence standard) should apply to the plaintiffs’ claims.