I have a so-called paper street that runs through my property and I would like to put an addition on my house which would encroach into that area.  What problems might I run into if I do that?

Generally speaking, when a street is laid out a plan, all of the owners of lots shown on the plan would have the right to use the streets. In addition the city or town may have rights in connection with the street if it intersects with other public ways.  That right is known as an easement and generally the owners of lots shown on the plan have the right to use the way for all purposes for which streets and ways are used in the city.  Even though the street was not built, those rights continue to exist in those property owners. If you built your addition of any one of those property owners would have a right to bring a suit to have the addition removed, so it is not something that you would do without eliminating that risk. You could try to get a release deed from all of the owners that are shown on the subdivision plan, plus you would need to get some document evidencing the city’s release of any claim that it may have to use the street. The alternative would be to bring a lawsuit against all of the owners and the city and attempt to have the court make a finding that the rights of the other parties in the street have been abandoned by them.  However you would have to prove that they have abandoned those rights.  Mere nonuse does not constitute an abandonment.  So you would need to prove that other lot owners within the subdivision have no practical use for the way and, for those owners who abut the paper street, you would have to demonstrate that they have used their property in such a fashion so as to indicate an intention to abandon their rights in the way.  For instance, if a property owner built a stone wall within the right way or planted trees or landscaping or a garden in such a manner as to make the paper street inaccessible to them or to others you might succeed.  It is a difficult burden to establish.  However more recent cases have followed the line of reasoning that where changes take place since the creation of the paper street that makes it impossible as a practical matter to accomplish the purpose for which it was created, a court may modify it, or if such modification would not effect the purpose for which it was originally intended, a court may terminate the rights.  As a practical matter if you bring the suit most of the parties would probably not file an answer or engage in attorney.  But I can assure you it will be expensive even if nobody files an answer since the titles will have to be searched for all of the lot owners and they will have to be served with legal process.  If there are only a few owners who might be effected perhaps a conversation with them might get you what you need.

If you have questions about this or any other real estate matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.