RIGHTS AND INTERESTS IN REAL ESTATE ► CHAPTER 4

© 2009 South-Western, Cengage Learning

© 2009 South-Western, Cengage Learning

HOMESTEAD PROTECTION

limited to $500,000 of equity in home

not automatic–requires one time filing (deed or filing)

Section 1 – only one owner for benefit of entire family

Section 1A –seniors or disabled, applies to individual

© 2009 South-Western, Cengage Learning

© 2009 South-Western, Cengage Learning

OTHER CONCERNS

➛ no protection for registered land held in trust

➛ mobile home homestead filed with city/town clerk

➛ may file homestead regardless of how title is held

➛ increase to $500,000, 2004, retroactive before 2004

© 2009 South-Western, Cengage Learning

Dower rights diminished . . .

• common law doctrines related to marital property

• term of curtesy eliminated, now all rights are dower

• dower rights upon death not marriage

• dower rights - life estate 1/3 land of deceased spouse

• dower rights rarely employed

• divorce terminates dower rights

© 2009 South-Western, Cengage Learning

CREATING AN EASEMENT

by deed or express grant

by prescription (adverse use)

by necessity

most easements created by deed or express grant

conveys a limited use of property

may be for unlimited or specific duration

statute of frauds requires writing to be enforceable

© 2009 South-Western, Cengage Learning

© 2009 South-Western, Cengage Learning

© 2009 South-Western, Cengage Learning

implied when a parcel of land is landlocked

not available for registered land

not automatic – each case examined on its merits

© 2009 South-Western, Cengage Learning

© 2009 South-Western, Cengage Learning

Most easements are affirmative authorizing use

Negative easements restrict use such as a view easement barring the blocking or interference with a view

© 2009 South-Western, Cengage Learning

CONSERVATION EASEMENTGenerally negative easements to protect conservation lands, watersheds, historic properties, agricultural lands and affordable housing

SOLAR EASEMENTMassachusetts law encourages solar easements as an alternative energy source

© 2009 South-Western, Cengage Learning

LICENSE

• smallest possible right to occupy real estate

• not an interest in land

• may be terminated by either party at any time

© 2009 South-Western, Cengage Learning

TIDAL WATERS

• riparian owner owns to MLW mark (but not further than 100 rods or 1,650 feet)

• tidelands are land beneath the water

• private tidelands are the land below the water between the high and low water lines owned by a private party

USE OF PRIVATE TIDELANDS

• public easement - swimming, fishing, navigating and fowling

• touching land in private tidelands is a trespass

• the water is state property

© 2009 South-Western, Cengage Learning

RIPARIAN RIGHTS• Massachusetts is a riparian state• generally, all water rights referred to

as riparian rights

PONDS AND LAKES• controlled by state - riparian owner

owns to water’s edge

© 2009 South-Western, Cengage Learning

STREAMS

• riparian owner has right to use, but cannot divert or interrupt

• if navigable, ownership is to water’s edge

• if NON-navigable, ownership is to middle of stream

• if owner owns both sides of non-navigable stream, riparian owner owns all of the land underwater

KEY TERMS

© 2009 South-Western, Cengage Learning

conservation easement

dominant estate (tenement)

dower

easement in gross

homestead declaration

homestead exemption

license

negative easement

prescriptive easement

prescriptive tidelands

riparian rights

servient estate (tenement)

solar easement

tacking

tidal water