The Massachusetts Appeals Court held that a right to have a neighbor extend a sewer pipe, written into an exhibit attached to a recorded easement agreement, ran with the land and could be enforced by a later owner. An unsigned exhibit can still bind the parties when the signed agreement expressly refers to it and it is attached. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
In November 2008 several parties with interests in neighboring parcels signed an easement agreement. Its statement of consideration referred to “the agreement attached hereto as Exhibit D.” Exhibit D, which was not separately signed, required the owner of one parcel and its successors to extend a sewer pipe to the property line so a business on the other parcel could connect to public sewer service, and it granted an easement to use the extended pipe. The plaintiff later succeeded to the benefited parcel. The defendant disputed that the duty to extend the pipe passed to new owners, arguing that Exhibit D was a separate, personal deal that did not pass to new owners. A Superior Court judge entered judgment for the plaintiff on the pleadings.
What the court decided
The Appeals Court affirmed in Rangeway Owner, LLC v. Billerica Developers, LLC, No. 24-P-973 (Mass. App. Ct. May 20, 2025) (Rule 23.0 decision).
The exhibit was part of the agreement. Contract language incorporates another document only when it clearly shows the purpose is to make that document part of the contract, not just to mention it as background. NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381 (2012). Here the easement agreement treated Exhibit D as a central part of the bargained for exchange. A clause saying the sewer terms survived even if the easement agreement ended worked like an ordinary survival clause, and a boilerplate merger clause did not control. Because Exhibit D was part of the easement agreement, a section stating that the rights and duties “herein contained” run with the land covered the sewer provision too.
The result was the same even if Exhibit D stood alone. The court split the provision into two parts: a promise to extend the pipe, and an easement to use it.
- The promise. An equitable servitude must be in a writing that satisfies the Statute of Frauds, the original parties must intend it to bind and benefit later owners, it must touch and concern the land, and the later owner must have notice. Sullivan v. O’Connor, 81 Mass. App. Ct. 200 (2012). The Statute of Frauds requires a signed writing for an interest in land. G.L. c. 259, § 1. The court disagreed with the trial judge on this point and held that an unsigned document attached to and expressly referenced in a signed writing is read as part of it. See Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187 (2002). Intent for the promise to run with the land could be inferred from the easement that came with it.
- The easement. Easements are presumed to be appurtenant, meaning they belong to the land rather than to a person. Schwartzman v. Schoening, 41 Mass. App. Ct. 220 (1996). Leaving out words like “heirs and assigns” does not defeat that presumption. Kenney v. Marino, 350 Mass. 534 (1966). A right meant to give access to public sewer benefits the land itself.
The plaintiff used the right properly. The provision said the pipe would be extended so the original business could connect, but it did not say that was the only permitted purpose. The court would not read in a limit the parties did not write. An argument about government approvals came too late, in a reconsideration motion, and failed anyway.
What this means for you
If you are buying property, the rights and duties in recorded easement agreements and their exhibits may come with the land, even when an exhibit is unsigned and names only the original owner or business. Read every attachment, not just the first pages.
If you own the land that carries the burden, a promise a prior owner made to a neighbor can bind you. Arguing that the promise was personal, or that it only served the original neighbor’s business, is an uphill fight when the documents say the rights run with the land.
The case also shows a procedural trap. Arguments raised for the first time after judgment, in a motion for reconsideration, are rarely saved on appeal.
What to do now
- Pull every recorded easement, declaration and agreement in your chain of title, including all exhibits.
- Look for language stating that rights and duties run with the land or bind successors and assigns.
- If a neighbor asks you to perform an old promise, find out whether it was recorded and whether you had notice when you bought.
- Raise every defense before the court rules, not in a later motion.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
