In Conway, et al. v. Caragliano, et al., the Appeals Court has found that, “the Derelict Fee Statute (DFS)” gives owners of a beachfront parcel a fee interest in a strip of registered land abutting their property and providing beach access to others even though their title did not specifically reference the strip or its ownership.”
The case concerned a 40-foot-wide strip of land running alongside the Conway’s property from the street to the ocean. For many years, property owners in this development used the strip of land to access the water. The Conways, however, altered this right of way leaving a much narrower strip that purportedly kept others from using it.
While the Land Court had ordered the Conways to remove the encroachments that interfered with its use, the Appeals Court found that they actually did have a fee interest in the way because their deed did not explicitly state that the original grantor retained a fee.
Pierce Atwood real estate and land use partner Donald R. Pinto, Jr. said that he found the “dustup between the majority and the dissenting judge over whether the DFS applied” to be noteworthy.
Don pointed out that in Judge Rubin’s dissent, he stated that the key deed granted an easement over the way at issue, which he viewed as an “express exception” of the fee interest under the statute such that the statute would not apply, but that the majority found that because there was no mention of the word “fee,” the statute did apply, giving the plaintiffs a fee in the way.
“Since both opinions cite the same 1992 Appeals Court decision, Tattan v. Kurlan, in support of their opposing views, the Supreme Judicial Court may end up settling this debate, whether in this or a future case,” Pinto said.
The complete article, by Eric T. Berkman, can be found in the July 21, 2023 issue of Massachusetts Lawyers Weekly.