KEVIN P. BOIVIN, also known as KEVAN P. BOIVAN; LORRAINE Y. BOIVIN, also known as LORRAINE Y. BOIVAN; and DEBRA CAMPAGNA v. RACHEL M. BECKMAN

This case comes before the court on special motion of the Defendant Rachel M. Beckman to dismiss the Complaint, pursuant to G.L. c. 184, § 15. The underlying action is for a declaratory judgment, pursuant to G.L. c. 231A, § 1, regarding the rights of the parties in a parcel of real property, known as and numbered 208 North End Boulevard in Salisbury (Property), owned of record by Defendant. Plaintiffs, Kevin Boivin, also known as Kevan Boivan; Lorraine Y. Boivin, also known as Lorraine Y. Boivan; and Debra Campagna, seek to establish easements for parking over the Property.

General Laws chapter 184, § 15 provides that a party may make a special motion to dismiss an action or claim supporting a memorandum of lis pendens on the grounds that the claim is frivolous. An action or claim is frivolous if “(1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.” 184, § 15.

In the present case, Defendant argues that the Complaint is devoid of any arguable basis in law and is subject to dismissal based on valid legal defenses. Specifically, Defendant contends that the Plaintiffs’ theory that an easement by implication can burden registered land if the landowner has actual knowledge of the easement at the time of his or her purchase, is not legally valid. General Laws, chapter 185, § 46 provides that “[e]very plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate ….” In the case of an easement, registered land cannot be burdened as the servient estate, unless it appears on the certificate of title. Tetrault v. Bruscoe, 398 Mass. 454 , 461 (1986) (and cases cited).

However, even “[i]f an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest.” Jackson v. Knott, 418 Mass. 704 , 711 (1994); Wild v. Constantini, 415 Mass. 663 (1993); Killam v. March, 316 Mass. 646 (1944); Feldman v. Souza, 27 Mass. App. Ct. 1142 (1982). Regardless, G.L. c. 185, § 53 provides that “no title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land.” This language has been interpreted to mean that no easement may be implied against registered land, either by necessity or otherwise. See Goldstein v. Beal, 317 Mass. 750 , 757 (1945); Abdulla v. Nabhan, 5 Mass. App. Ct. 774 , 775 (1977) (and cases cited). Therefore, an easement may burden registered land as the servient estate, only where there is some registered writing or the landowner had actual knowledge of some unregistered writing or the easement, express or implied, validly burdened the land prior to its registration.

In the present case, the Property is and, at all times relevant to this case, was registered land. On August 9, 1982, Rose Valentino was the owner of a parcel of land in Salisbury comprising, what is today, the Property. Prior to July 6, 1982, Ms. Valentino submitted to the Land Court for approval, a subdivision plan of her parcel, titled “Subdivision Plan of Land in Salisbury, Merrimack Engineering Services, Surveyors,” dated August 15, 1981. On July 6, 1982 the court approved the plan as Land Court Plan 3200-185 and filed it with the Essex South Registry of Deeds on August 10, 1982. The plan subdivided her parcel into lots 820, 821, 822, and 823. Lot 822 is the Property. The plan sets off a portion of the Property and labels it “Parking Easement.” A copy of the plan is attached.

The same day, August 10, 1982, Ms. Valentino conveyed the Property to Anthony F. Doherty, Jr. and Sylvia Doherty. No easement burdening the Property is provided for in the deed or the certificate of title. Also on August 10, 1982, Ms. Valentino conveyed lots 820 and 821 to John E. Doherty and Mary Doherty. No easement benefiting lots 820 and 821 is provided for in that deed or certificate of title. On October 25, 2000, Ms. Valentino’s estate conveyed lot 823 to Plaintiffs, Kevin P. Boivin and Lorraine Y. Boivin. Again no easement benefiting lot 823 is provided for in the deed or certificate of title. Plaintiffs allege that at the time of these conveyances, the parties orally agreed that the Property would be burdened by an easement for the parking of two automobiles, one from lot 823 and one from lots 820 and 821. Defendants admit that this agreement was made between Ms. Valentino, and Anthony F. Doherty, Jr. and Sylvia Doherty concerning the Property, but deny any similar agreement that lot 820 and 821 or 823 would be benefited.

Since August 10, 1982 until March 9, 2009, the Plaintiffs and their predecessors in title have used the Property to park an automobile, from each of the two parcels. No easement has ever been provided for in any of the deeds of the lots or their certificates of title.

It is undisputed that there is no writing memorializing the alleged easement. Therefore, even if the Plaintiffs could show that the Defendant had actual knowledge of Ms. Valentino’s attempted oral grant of parking easements over the Property, the Plaintiffs’ theory is for an easement by implication. Since the Property is registered, this theory is of no avail. Plaintiffs contend that the language of G.L. c. 185, § 53 specifically includes only easements implied by necessity, but omits all other implicit easements. That is not the interpretation adopted by the courts. The purpose of the registration system is to create indefeasible titles. To prohibit easements by necessity from burdening registered land but allow the court to impute easements from prior use would be illogical and defeating of the system.

Plaintiffs argue also that the “Parking Easement” area labeled on the 1981 subdivision plan is sufficient to prompt a reasonable purchaser to investigate the title of the Property further. However, a notation on a registered plan, alone, is simply not sufficient. See G.L. c. 185, § 46; Jackson v. Knott, 418 Mass. 704 , 710-11 (1994). The “Parking Easement” notation on the plan is not referenced by any deed or certificate of title in the chain of title to any of the relevant parcels. Even if the notation did give Defendant a duty to investigate, a title search of the relevant parcels would not have turned up any further documentation identifying the dominant estate. The plan itself does not even identify what property or individuals are benefited by this easement.

Lastly, the parties’ discussion of the statute of frauds is misplaced. An express easement, must be in writing and must describe the subject with reasonable certainty. Mason v. Albert, 243 Mass. 433 (1923); Oldfield v. Smith, 304 Mass. 590 (1939). An oral agreement to convey an easement creates merely a license, revocable at the will of the licensor. Mason, 243 Mass. at 437; Cook v. Sterns, 11 Mass. 533 , 538 (1814). Partial performance is not available to establish an easement, because a license is already established. See Barber v. Fox, 36 Mass. App. Ct. 525 , 530 (1994) (quoting Restatement (Second) of Contracts § 129 (1979)); Hickey v. Green, 14 Mass. App. Ct. 671 , 673 (1982). A license, unlike an easement, is not an interest in the land. Therefore, the licensee cannot establish a possession of land. Rogel v. Collinson, 7 LCR 342 , 347 (1999) (Misc. Case No. 127162) (Lombardi, J.), aff’d, 54 Mass. App. Ct. 304 (2002). While it is true that Defendant admits that this oral agreement existed between Ms. Valentino and Anthony F. Doherty, Jr. and Sylvia Doherty, the question of the existence of the easement remains a question of law for the court. Tritsch v. Ayer Tanning Co., 316 Mass. 598 , 602-603 (1944). Therefore, I rule that the Plaintiffs’ Complaint is devoid of any arguable basis in law. Accordingly, it is hereby:

ORDERED that the Defendant’s Special Motion to Dismiss is ALLOWED.

Judgment to issue accordingly.

So Ordered.

By the court (Trombly, J.).

Attest:

Deborah J. Patterson

Recorder

Dated: November 3, 2009