"Open" and "Notorious" in Relation to Prescriptive Easements
by Roger T. Manwaring

After months of searching, you’ve found the perfect location for your combination skate board supply and orthopedic surgery practice. In addition to spacious offices, it offers a large parking lot for your many anticipated customers/patients. Shortly after your gala grand opening, however, you notice that customers from the bank located on the other side of your parking lot are using the lot, thereby depriving you of many of its spaces. Your polite inquiry to the bank yields some disturbing news. The bank claims that it has a prescriptive easement which allows its customers to park on your lot, because they did so for more than 20 years before you purchased the property, without permission from your predecessor, who ran a popular greasy spoon diner/cholesterol treatment center. 

The prior owner tells you that he permitted the customers of certain neighboring business, including a hairdresser and stationary shop, to use the lot, but never had any agreement with the bank. Moreover, prior to selling the property to you, the prior owner revoked the permission he had given those other businesses.

Can the bank continue to use your lot? That depends on whether the prior owner of your property should reasonably have noticed that bank customers were parking without permission. Stated in legal terms, the issue is whether the bank’s use was sufficiently “open” and “notorious” to create a prescriptive easement.

An easement is the legal right to use another person’s land in a certain way. Just as it is possible to take title to someone else’s land by adverse possession by using it as one’s own for the required time period, an easement (the right to use the land of another in a certain way) can be obtained by prescription. Under Massachusetts G.L. c. 187, §2, a person can acquire a prescriptive easement upon the land of another by use of that land in a manner which is open, notorious, adverse to the owner (i.e. without permission), and continuous for a period of at least twenty years. 

This article considers what type of use is sufficiently “open” and “notorious” to create a prescriptive easement. This issue often arises when the person claiming the easement has used another person’s property without permission but in the same manner as other people were using it with the owners permission (e.g. parking cars without permission in a lot where other people park with permission). In such a case there is an issue whether the property owner should reasonably have noticed the adverse use on which allegedly gives rise to the easement.

“The purpose of the requirement of ‘open and notorious’ use is to place the true owner ‘on notice of the hostile activity … so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Lawrence v. Town of Concord, 439 Mass. 416, 421 (2003).

In Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007), the Appeals Court defined “open” and “notorious”:

To be “open,” the use must be without attempted concealment…. For a use to be found notorious, it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property…. “It is not necessary that the use be actually known to the owner for it to meet the test for being notorious.” … It is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use.
 
Id. at 44.

Because the requirements for prescription are intended to put the true owner on notice of the adverse/hostile use, a use is not notorious if the circumstances are such as to conceal it from the owner. Thus, where the owner has permitted one party to use his land in a certain way, another person who concurrently uses the same land without permission acquires no prescriptive rights unless the concurrent adverse use is sufficiently distinct from the permitted use so that the owner should become aware of the adverse use. 

In Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 (1985), the owner of adjacent land, Rifkin, claimed to have an easement to park cars on a lot located on land of the owner, Seaman’s. Another company, Columbia, parked cars on the same lot with permission from Seaman’s. The court rejected Rifkin’s claim to have acquired a prescriptive easement, noting that the unpermitted/adverse use by Rifkin (parking cars) was not sufficiently distinct from the permitted use by Columbia (also parking cars) to put the property owner (Poorvu) on notice:
The undisputed facts show that Rifkin's employees and invitees regularly parked their cars (generally four in number but sometimes more, sometimes less) on the locus with Columbia's permission and in a manner identical to that of Columbia's employees and invitees. There was nothing to distinguish any of the cars as belonging to the employees and invitees of Columbia or those of Rifkin.
 
There are no facts, disputed or otherwise, which appear on the record to show whether the Poorvus knew of and assented to the arrangement between Rifkin and Columbia or whether they ever exercised their right to inspect their premises. We cannot infer from the recited undisputed facts, especially in view of the provisions of the lease agreement, that Rifkin's use of the lot was sufficiently remarkable that the Poorvus knew or should have known that such use was adverse to their rights to the locus.
 
19 Mass. App. Ct. at 252. (Emphasis added). See also Angenica v. Town of Marblehead, 1992 WL 12151892 (Mass. Land Ct. 2/10/92); Sprow v. Boston & A. R. Co., 163 Mass. 330 (1895); Harper v. Parish of the Advent, 89 Mass. 478 (1863); Restatement (third) of Property (Servitudes), §2.17 com “h”.

Thus, where the adverse use is not distinguishable from permitted use by others, the owner is not given notice of the adverse use and no prescriptive rights can be acquired. A party claiming an prescriptive easement must take care to identify a use sufficiently distinct that the property owner should notice it. Only then is the use “open” and “notorious.”

The outcome of the parking lot dispute between the skateboarding orthopedist and the bank will depend on whether the orthopedist’s predecessor, the cholesterol treatment center, should have noticed the bank’s use. If so, the bank will have an easement to continue parking on the lot. If, however, the cars of the bank’s customers were indistinguishable from those of the permitted users (the hairdresser and stationary store), then the bank’s use was not sufficiently open and notorious and its easement claim will fail.

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.