Private Way

Private Way
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On Behalf of Jeffrey T. Angley, P.C. | Dec 22, 2011 | Real Estate Law |
For landowners abutting a private way, obligations regarding maintenance and repair of the way depend on who owns the fee in the private way. These obligations include things like snow removal, re-paving, proper drainage and other maintenance issues.
In general, a person in control of a private way owes a duty of reasonable care to those persons using the private way. Determining who actually owns or is control of the private way is another matter.
In many cases, a landowner’s deed will expressly state whether the conveyance of the lot includes the fee interest in all or a portion of the private way. Often the original land developer retains the fee interest in the private way, and therefore has the attendant duty to maintain the road. Sometimes the developer will grant the fee in the private way to a homeowner’s association that will assume responsibility for maintenance and repairs.
Alternatively, in some cases, the abutting landowners may each own a portion of the private way based on the grant of land set forth in their respective deeds. Depending on how the lots are laid out around the private way and described in the deed, such ownership may or may not include the entire width of the road. In this case, all of the owners of the road will hold a collective responsibility to maintain and repair the private road; in many cases these landowners will also transfer responsibility to a duly formed homeowner’s association.
All too often, however, there are deeds that do not expressly state who owns the fee in an adjacent private way. In those circumstances, the law provides relief in the construction of such deeds with M.G.L. c. 183, § 58, the so-called “derelict fee statute”. For those lots that bound on a private (or public) way,
Section 58 mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way — to the centerline if the grantor retains property on the other side of the way or for the full width if he does not — unless ‘the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.’ The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way.
Tattan v. Kurlan , 32 Mass. App. Ct. 239, 243 (1992) (interpreting the derelict fee statute). The application of the statute is retroactive, and thus applies to all deeds, including those that predate the passage of the law in 1972.
Once ownership of the private way can be determined, then the rights and obligations of the owner(s) to maintain the way can be assessed. If there are also easements over the private way, additional considerations must be made and the law becomes less certain. For example, while the well established principle is that the duty of maintaining an easement rests upon the holder of the easement, Shapiro v. Burton, 23 Mass. App. Ct. 327, 333, 502 N.E.2d 545, 549 (1987), at least one Superior Court case suggests that, there may be instances where the maintenance obligations in a private right of way should be apportioned between both the servient and dominant estate holders. This is where careful analysis of all relevant deeds and plans and perhaps even the balancing of the reasonable use of the way becomes essential in determining the rights and obligations of all interested parties.
Written by Kristen M. Ploetz, Blog Editor
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Phillips & Angley 1 Washington St. Suite 7A Boston, MA 02108 866-675-2109 617-892-4391 Boston Real Estate Office Location
© 2022 Jeffrey T. Angley, P.C. • All Rights Reserved

Newton traffic engineer Clint Schuckel: "A lot of times, private ways are very bumpy with a lot of potholes. A lot of times, the people who live there like that. It's a traffic-calming measure."
(The Boston Globe/file 2005)

© Copyright 2008 Globe Newspaper Company.

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I chuckle as I write this, for Hammondswood Road is in a very nice section of Newton. According to the assessors' office, the average Hammondswood home is worth $1.2 million. Don't see much danger in that.
M y favorite shortcut to the Chestnut Hill Mall has an element of danger to it. At least, that's what the sign says. "NOT A PUBLIC WAY -- DANGEROUS" reads the small white marker on Hammondswood Road.
What drives you nuts? Is there a traffic rule you've always wondered about, or a pet peeve that never fails to annoy you? Tell City Weekly about it at ciweek@globe.com and we'll check it out.
Nonetheless, I'm always a bit wary when traveling down the street. For one thing, the pavement is in absolutely horrible shape, with more ruts and potholes than you can count. But what really bothers me is that while Hammondswood Road looks like any other street, it's legally a private way, and I'm not entirely sure what that means.
Am I trespassing if I drive down it? Does a different speeding limit apply? Should I turn my car around and find another route?
This week, we look at a true driving oddity, the private way.
The law says I'm picking on Hammondswood Road, but private ways are everywhere: I've got one three houses down from me in Somerville, and beach and rural communities can be loaded with them. For the most part, such roads are dead ends or cul-de-sacs with a smattering of homes, the byproducts of housing subdivisions. They're certainly convenient for developers, who save time by forgoing the municipal approval process needed to establish a public way.
Developers also save money, as private roads don't need to meet the construction standards of a public street.
This last point explains why Hammondswood Road is in such bad shape. The city of Newton is not responsible for the upkeep. Instead, the homeowners are.
"A lot of times, private ways are very bumpy with a lot of potholes," said Clint Schuckel, Newton's traffic engineer. "A lot of times, the people who live there like that. It's a traffic-calming measure."
It's an interesting theory: Make your street so inhospitable that no one will want to traverse it. But what about legal barriers to entry? Can private road dwellers stop outsiders from driving down their block? Are private ways closed to the general public?
You wouldn't believe how tough it was to get a straight answer on this.
Some traffic officials hadn't a clue. Other sources, including a few police departments, told me that if residents on a private way elect to post "No Trespassing" signs at the beginning of the street, then yes, the street is closed to outsiders.
Thank goodness that Mark Rumley, Medford's city solicitor, knew the correct law.
"Residents cannot put up a 'No Trespassing' sign at the front of a private way," he said. "The public has the right to pass on it. People think of 'private' in the sense of something being exclusive. But it's really private in that it has not been accepted as a public way, with public standards. It does not mean exclusivity. Being a way, it's open for the public to pass. Continued...
"Do the people along the private way have rights in the private way? Yes," Rumley continued. "But those rights are subject to the right of the public to traverse the way. Some people will say to you that as abutters, we own to the middle of the way. When they say that, ask them to go to the assessors' office and see if the additional footage into the middle of the street is on their tax bill. I can tell you: No, it isn't. And do they want it included? No, they don't."
Residents on a private road do have the right to create their own parking rules, however. If "No Parking" signs are posted and you disobey, residents can have your car towed for trespassing. You can't, though, get a parking ticket, as it's not town or city property.
"When the winter parking ban is on," said Sergeant Joseph Deignan, traffic chief for the Watertown police, "I have two or three private streets that attract abutters" as ideal spots to park a car. "I get called to come mediate, but I say I have no enforcement on a private way. If the car is obviously abandoned - missing tires or something - I can tow it under the abandonment law. But I can't ticket it."
Police, in fact, can hardly enforce any driving regulations on private roads, because they are not owned by the state or by municipalities. (There are rare exceptions, such as drunken driving arrests.)
"Technically there are no rules of the road for private roads. There are certain specifics that they have to abide by, but in general, there's not much," said Jennifer Mehigan, spokeswoman for Boston Mayor Thomas Menino.
Schuckel said that private ways must be open to police and emergency vehicles, as well as snowplow trucks, so residents can't just park their cars in the middle of the street, or otherwise block the path with a sawhorse or gate.
The same is true for private alleys in the Back Bay and Beacon Hill, Mehigan said. (If the private way is essentially a driveway leading to a single property - a condo complex, for example - that owner can erect a gate.)
Municipalities do have the right to create rules for private ways if public safety is called into question. For example, Newton's parking ban on residential streets during Boston College football games extends to Hammondswood Road, Shuckel said.
Municipalities also have the right to fill potholes on private ways, again in the name of safety, but don't necessarily need to provide other standard services, most notably trash pickup.
"The city plows you in Newton, runs the street lights, and collects the trash," said Schuckel.
"The only disadvantage to living on a private street here is the condition of the road. It can be poor, and in most cases it has no sidewalk, and when it rains there are no storm drains to collect the water. You might want a four-wheel drive if you're living there."
M y favorite shortcut to the Chestnut Hill Mall has an element of danger to it. At least, that's what the sign says. "NOT A PUBLIC WAY -- DANGEROUS" reads the small white marker on Hammondswood Road.
What drives you nuts? Is there a traffic rule you've always wondered about, or a pet peeve that never fails to annoy you? Tell City Weekly about it at ciweek@globe.com and we'll check it out.

Newton traffic engineer Clint Schuckel: "A lot of times, private ways are very bumpy with a lot of potholes. A lot of times, the people who live there like that. It's a traffic-calming measure."
(The Boston Globe/file 2005)

© Copyright 2008 Globe Newspaper Company.

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Subscribe |
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© 2022 NY Times Co.

I chuckle as I write this, for Hammondswood Road is in a very nice section of Newton. According to the assessors' office, the average Hammondswood home is worth $1.2 million. Don't see much danger in that.
M y favorite shortcut to the Chestnut Hill Mall has an element of danger to it. At least, that's what the sign says. "NOT A PUBLIC WAY -- DANGEROUS" reads the small white marker on Hammondswood Road.
What drives you nuts? Is there a traffic rule you've always wondered about, or a pet peeve that never fails to annoy you? Tell City Weekly about it at ciweek@globe.com and we'll check it out.
Nonetheless, I'm always a bit wary when traveling down the street. For one thing, the pavement is in absolutely horrible shape, with more ruts and potholes than you can count. But what really bothers me is that while Hammondswood Road looks like any other street, it's legally a private way, and I'm not entirely sure what that means.
Am I trespassing if I drive down it? Does a different speeding limit apply? Should I turn my car around and find another route?
This week, we look at a true driving oddity, the private way.
The law says I'm picking on Hammondswood Road, but private ways are everywhere: I've got one three houses down from me in Somerville, and beach and rural communities can be loaded with them. For the most part, such roads are dead ends or cul-de-sacs with a smattering of homes, the byproducts of housing subdivisions. They're certainly convenient for developers, who save time by forgoing the municipal approval process needed to establish a public way.
Developers also save money, as private roads don't need to meet the construction standards of a public street.
This last point explains why Hammondswood Road is in such bad shape. The city of Newton is not responsible for the upkeep. Instead, the homeowners are.
"A lot of times, private ways are very bumpy with a lot of potholes," said Clint Schuckel, Newton's traffic engineer. "A lot of times, the people who live there like that. It's a traffic-calming measure."
It's an interesting theory: Make your street so inhospitable that no one will want to traverse it. But what about legal barriers to entry? Can private road dwellers stop outsiders from driving down their block? Are private ways closed to the general public?
You wouldn't believe how tough it was to get a straight answer on this.
Some traffic officials hadn't a clue. Other sources, including a few police departments, told me that if residents on a private way elect to post "No Trespassing" signs at the beginning of the street, then yes, the street is closed to outsiders.
Thank goodness that Mark Rumley, Medford's city solicitor, knew the correct law.
"Residents cannot put up a 'No Trespassing' sign at the front of a private way," he said. "The public has the right to pass on it. People think of 'private' in the sense of something being exclusive. But it's really private in that it has not been accepted as a public way, with public standards. It does not mean exclusivity. Being a way, it's open for the public to pass. Continued...
"Do the people along the private way have rights in the private way? Yes," Rumley continued. "But those rights are subject to the right of the public to traverse the way. Some people will say to you that as abutters, we own to the middle of the way. When they say that, ask them to go to the assessors' office and see if the additional footage into the middle of the street is on their tax bill. I can tell you: No, it isn't. And do they want it included? No, they don't."
Residents on a private road do have the right to create their own parking rules, however. If "No Parking" signs are posted and you disobey, residents can have your car towed for trespassing. You can't, though, get a parking ticket, as it's not town or city property.
"When the winter parking ban is on," said Sergeant Joseph Deignan, traffic chief for the Watertown police, "I have two or three private streets that attract abutters" as ideal spots to park a car. "I get called to come mediate, but I say I have no enforcement on a private way. If the car is obviously abandoned - missing tires or something - I can tow it under the abandonment law. But I can't ticket it."
Police, in fact, can hardly enforce any driving regulations on private roads, because they are not owned by the state or by municipalities. (There are rare exceptions, such as drunken driving arrests.)
"Technically there are no rules of the road for private roads. There are certain specifics that they have to abide by, but in general, there's not much," said Jennifer Mehigan, spokeswoman for Boston Mayor Thomas Menino.
Schuckel said that private ways must be open to police and emergency vehicles, as well as snowplow trucks, so residents can't just park their cars in the middle of the street, or otherwise block the path with a sawhorse or gate.
The same is true for private alleys in the Back Bay and Beacon Hill, Mehigan said. (If the private way is essentially a driveway leading to a single property - a condo complex, for example - that owner can erect a gate.)
Municipalities do have the right to create rules for private ways if public safety is called into question. For example, Newton's parking ban on residential streets during Boston College football games extends to Hammondswood Road, Shuckel said.
Municipalities also have the right to fill potholes on private ways, again in the name of safety, but don't necessarily need to provide other standard services, most notably trash pickup.
"The city plows you in Newton, runs the street lights, and collects the trash," said Schuckel.
"The only disadvantage to living on a private street here is the condition of the road. It can be poor, and in most cases it has no sidewalk, and when it rains there are no storm drains to collect the water. You might want a four-wheel drive if you're living there."
M y favorite shortcut to the Chestnut Hill Mall has an element of danger to it. At least, that's what the sign says. "NOT A PUBLIC WAY -- DANGEROUS" reads the small white marker on Hammondswood Road.
What drives you nuts? Is there a traffic rule you've always wondered about, or a pet peeve that never fails to annoy you? Tell City Weekly about it at ciweek@globe.com and we'll check it out.

Newton traffic engineer Clint Schuckel: "A lot of times, private ways are very bumpy with a lot of potholes. A lot of times, the people who live there like that. It's a traffic-calming measure."
(The Boston Globe/file 2005)

© Copyright 2008 Globe Newspaper Company.

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