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Massachusetts Agencies

Easements in Gross


Although the rule subscribed to in most jurisdictions is contrary, the rule in Massachusetts is that easements in gross are inheritable, assignable and can exist independent of a benefited or adjacent parcel of land. See Jones v. Stevens, 276 Mass. 318, 177 N.E. 91 (1931); Eno & Hovey, Massachusetts Practice, Real Estate Law with Forms, West Publishing Company, (Third Edition, 1995), §8.2; Swaim, Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §220; Partridge, Deeds, Mortgages and Easements, Wright & Potter Printing Co. (Revised Edition, 1932).

It is important to note, however, that in Rogel v. Collinson, 54 Mass.App.Ct.304, 765 N.E.2d 255 (2002) it was held that in order for any particular easement in gross to in fact be inheritable and assignable words such as "heirs and assigns" must actually appear in the instrument. In this regard, Rogel decided that G.L.c. 183, §13[1] did not apply to easements in gross because an easement in gross is "not technically in fee, because an easement in fee must be appurtenant to land held in fee," and that the aforementioned language, referring to "heirs and assigns" therefore, would be necessary in order to allow the easement to be inherited or transferred. In other words, easements in gross are not subject to the "modern" provisions of G.L.c. 183, §13 , but rather are subject to the rules of the common law, and thus require words of inheritance. See also Baseball Pub. Co. v. Bruton, 302 Mass. 54 (1938).

1 This statute provides as follows: " In a conveyance or reservation of real estate the terms 'heirs,' 'assigns' or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed ."