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LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 35406
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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Massachussetts law, I have been asked to sign a declaration

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Massachussetts law, I have been asked to sign a declaration of covenant for a private way. My concern is that declaration of covenants are for subdivisions, developments,condos.
I do not live in any of the above. This declaration of covenant is for a private way.
It is ensures that the 2 houses abutting the way have the right to ingress and egress over the way .There should not be any obstructions or impediments in the way. Is this the right document. Will it stand in court if I do not live in a subdivision. My neighbors are selling their house and I am not sure why this is the document to use. I just do not want any problems with the new owners.

Good evening Kathleen,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

Are you saying that your neighbor is selling their property, and they are asking you to sign this Declaration? Not to be materialistic, but are you being offered any money to sign this document?

As between the deeds to the affected properties, does your property own all or part of the private way?

Doug

Customer: replied 3 years ago.

No I am not being offered any money. My neighbor is selling their property. We each own to the middle of the road. I wanted an agreement


between the 2 houses and recorded in the registry of deeds. They came back with this declaration of covenant.


 

Customer: replied 3 years ago.

Not sure if you got my other reply.... no I am nor receiving any money.


We originally asked for an agreement easemnt. The neighbors came back with a declaration of covenant. We own to the half way mark on the private way.

Good evening,

A Declaration of Covenant is generally used when you are wanting to provide a roadway or power or plumbing across two or more parcels of property you own, or in the event you are a developer, for the entire development.

What your neighbor is wanting is an Easement over your half of the roadway separating your two properties. The covenant might be legally enforceable based on the clear intent of the document---but it would likely be construed as an easement by the courts as the properties are owned by separate individuals at the inception of the agreement.

If I were preparing the document, I would use an Easement document. Here is a link to a Maryland site that is nevertheless instructive in MA as well as other states in terms of the type of document used:

http://www.wsscwater.com/file/EngAndConst/DevServices/WSSCFactSheetEasementsandEncroachments.pdf

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

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