It can. In a January 2025 decision, the Appeals Court upheld a ruling that a backyard neighbor’s regular use of a narrow path across a condominium property, starting in 1959 and lasting more than twenty years, created a permanent right of way that passed to later owners. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
Two Provincetown properties share a rear boundary: a house on Bradford Street and a condominium on Commercial Street. A narrow path, about fifty feet long, runs along one side of the condominium lot to a gate on Commercial Street. Beginning in 1959, the man who then owned the Bradford Street house walked that path to reach Commercial Street and his shop, and others from his household used it too. Witnesses who knew him testified that he and his visitors used the path almost daily during their visits and fairly regularly over the years, and that no one objected. After he died in 2014, the house was sold. When renters of the new owner used the path in 2015, the condominium trustees called it trespassing and fenced it off with a locked gate. The new owner sued, and after a bench trial the Superior Court declared that his property held a prescriptive easement over the path and barred the trustees from blocking it.
What the court decided
In McLaughlin v. Bonlie, No. 23-P-739 (Mass. App. Ct. January 30, 2025) (Rule 23.0 decision), the Appeals Court affirmed.
A right of way by prescription requires use of another’s land that is open, notorious, adverse to the owner, and continuous for at least twenty years. G.L. c. 187, § 2; Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). The person claiming the easement must prove each element. Whether the elements are met is largely a question of fact for the trial judge, reviewed only for clear error. White v. Hartigan, 464 Mass. 400 (2013).
Continuous. The trustees argued the use was sporadic, perhaps a few weeks each summer. The court disagreed. Constant use is not required. The judge could reasonably infer from the witnesses that the owner, who had no car, walked the path on days his shop was open and for other trips, and was not limited to the specific days a witness happened to see him.
Open and notorious. The use was not hidden, and the path ran close to the condominium house. The trustees argued that one earlier owner was blind and could not have noticed. The court rejected that argument because the law requires only that the use be of a kind that puts a reasonable owner on constructive notice, not actual knowledge. See Boothroyd, 68 Mass. App. Ct. at 44.
Adverse. The trustees said the neighbors were friendly, so the use must have been permitted. But when use is open, notorious and continuous for twenty years, the law presumes it was adverse, and the burden shifts to the landowner to prove permission. Smaland Beach Ass’n v. Genova, 94 Mass. App. Ct. 106 (2018). Simply putting up with a neighbor’s use is not the same as granting permission. Rotman v. White, 74 Mass. App. Ct. 586 (2009). The trustees offered no evidence that anyone gave permission.
The court also held the judge did not need detailed findings about every past owner of the condominium land, because the presumption of adversity applied. The easement belonged to the Bradford Street land and passed with it on sale. See G.L. c. 183, § 15. And the condominium trust was a proper defendant, since it may sue and be sued over the common areas. G.L. c. 183A, § 10 (b) (4).
What this means for you
If you have used a path, driveway or shortcut over a neighbor’s land for decades, you may have a legal right to keep using it, even if you just bought the property. If an earlier owner of your property already used the path openly for twenty years, that right can pass to you with the land. Proof often comes from people who remember: old friends, neighbors and former occupants.
If you own the land being crossed, friendliness is not a defense. If you want to allow a neighbor’s use without creating a permanent right, the permission needs to be real and provable. Waiting to object can cost you the ability to stop the use later.
What to do now
- Write down when the use began, who used the path, how often, and for what purpose.
- Identify witnesses who saw the use over the years, and record their memories while they can still give them.
- Gather deeds, photographs, surveys and any letters about the path.
- If a neighbor blocks a path you have long used, or if you want to stop a use of your land, get advice before taking action yourself.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
