Not always. The Massachusetts derelict fee statute usually gives a homeowner the land under an abutting road, but only if the person who sold the land still owned that strip. In this case the Appeals Court ruled that a town, not the neighbors on either side, owns an undeveloped stretch of a beach road, because the land under the road was conveyed away to someone else in 1887. This is a published decision of the Appeals Court and binding statewide.
What happened
In 2017, the homeowners bought two parcels in the Nantasket Beach area of Hull: a house lot and a beach lot on the ocean. Between them sits an undeveloped area, about sixty feet by fifty feet, that is part of “Beach Avenue,” a way shown on an 1885 subdivision plan. The rest of Beach Avenue is a developed road. In 1886, the original developer sold the two lots to a buyer with deeds bounding them by the side lines of Beach Avenue. In 1887, the developer conveyed its remaining streets and lots, including this part of Beach Avenue, to a different buyer, whose estate conveyed the ways to the town in 1913. The town sued in the Land Court in 2022 to quiet title, and the Land Court judge ruled for the homeowners under the derelict fee statute.
What the court decided
In Town of Hull v. Ferrara, No. 24-P-1317 (Mass. App. Ct. March 5, 2026), the Appeals Court vacated the judgment and sent the case back.
The statute. Under G.L. c. 183, § 58, every deed to land abutting a way is read to include any fee interest the seller has in that way. Apart from special rules when the seller keeps other land on the same way, the seller can hold back the fee only by an express exception or reservation in the deed. Bounding the lot by a side line is not enough. The statute was passed in 1971 to clear up title to narrow strips that sellers forgot to convey. Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 802 to 804 (2003). It applies to older deeds too, with exceptions, including where someone changed position because of a court decision.
No fee to pass. The court looked at the deed that gave the homeowners title, the 2017 deed, and asked what interest the seller then had in the road. The answer was none. Under the old common law rule, the 1886 side line deeds did not carry the road. The road passed to the 1887 buyer and then to the town in 1913. A seller cannot convey what it does not own. The court relied on Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 388 to 389 (2005), which held the statute had no effect where the seller no longer held the fee. The court said the statute applies retroactively, but it is not a time machine: it does not undo a valid conveyance made under the law of the time.
The town relied on a court decision. As a second reason, the court pointed to Hobart v. Towle, 220 Mass. 293, 297 (1915), in which the Supreme Judicial Court, looking at the same Nantasket deeds, said the fee in the streets stayed with the developer and later went to the town. The town paved and maintained the roads it received for many years. That was a change of position in reliance on a court decision, so the statute’s retroactive reach did not apply.
One justice dissented and would have applied the statute to the 1886 deeds, giving the homeowners the disputed area. The court did not decide the homeowners’ adverse possession and prescriptive easement counterclaims, which remain open on remand.
What this means for you
If your deed says your lot runs to a road, you may assume you own to the middle of it. Often you do. But the statute only passes what your seller actually owned. If someone earlier in the chain of title already sold the road, sometimes more than a century ago, there is nothing for your deed to carry.
That matters for paper streets and unbuilt ways, especially near beaches. A strip that looks like your yard may belong to the town or to someone else. Before you build, fence, landscape or block access, find out who holds the fee.
The case also leaves other routes open. Ownership of the fee is a separate question from easements and adverse possession. The homeowners’ counterclaims on those theories were not decided, and the court said nothing about how they should come out.
What to do now
- Pull your deed and read how it describes the boundary on the road: “by the way” or “by the side line of the way.”
- Have a title examiner trace the road itself, not just your lot, back to the original subdivision.
- Check whether the town accepted or received a deed to the way, and whether it maintains it.
- Keep records of your own use of the strip, with dates, in case easement or adverse possession questions come up.
- Talk to a lawyer before a dispute with a town or neighbor over a road or path turns into a lawsuit.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
