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What is a "Private Way" in MA?

  1. #1
    Rust never sleeps. whynot's Avatar
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    What is a "Private Way" in MA?


    A friend is looking at a house on a "Private Way" -- how is that different from a public way? Long time ago, someone told me that it means that the public has access, but the municipality may not have full responsibility for maintenance or liability or whatever ... that could be 'way off, hearsay. I searched MGL and came back with many hits on "private way" but I haven't so far found a legal definition of private way.

    What's anybody know, or what's your experience?

    Thanks, asking for a friend (in truth).

    https://malegislature.gov/Laws/Searc...72616c204c6177

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  2. #2
    Lifer
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    Re: What is a "Private Way" in MA?

    I'd interpret that to mean the house is down a private road, which can either mean the house is set way in the back of a large piece of property, or the house is only accessible by using a privately owned road that passes through someone else's property. If so, I'm not sure you're really going to find a law declaring this explicitly.

    It's different from a public way in that the public has zero right to use it, and that the property owners are responsible for all road care/plowing.

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    WMC original sdog30's Avatar
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    Re: What is a "Private Way" in MA?

    Private way means the people that live on it have to maintain it. Hence you pay for plowing and road maintenance and not the city. Usually a community board is involved and there are like hoa fees.

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    Rust never sleeps. whynot's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by sdog30 View Post
    Private way means the people that live on it have to maintain it. Hence you pay for plowing and road maintenance and not the city. Usually a community board is involved and there are like hoa fees.
    ^^ Thanks, pretty much what I was guessing. He said the roadway is dirt and broken asphalt, looks like potholes ... sounds like liability. I'll keep browsing through the MGL search to see if I can find a definition.


    (aldend123 -- thanks -- pretty sure that what you are describing would be labeled "private road" or "private property" -- while "private way" is something different.)

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    Last edited by whynot; 08-24-20 at 05:08 PM.
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  5. #5
    Soul Rider Paul_E_D's Avatar
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    Re: What is a "Private Way" in MA?

    Have him find out who the contact is for the association. Ask what their plans are for fixing the road, and the timetable. Then go back to the seller with a suitably lower offer.

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    Angry Gumball RandyO's Avatar
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    Re: What is a "Private Way" in MA?

    What is a "Private Way" in MA?-private-jpg

    from Black's Law Dictionary under the definition of "way"

    Private way. A right which a person has of passing over the land of another. In another sense (chiefly in New England) a private way is one laid out by the local public authorities for accomodation of individuals and wholly or chiefly at their expense, but not restricted to their exclusive use, being subject, like highways, to the public easement of passage.

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  7. #7
    Lifer joeswamp's Avatar
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    Re: What is a "Private Way" in MA?

    I know someone who bought a house on the side of a big hill. He discovered that his street was originally a driveway that went to the big mansion at the top of the hill, and he then realized his lot included half of the street in front of his house. I think the town plowed his street for safety reasons but refused to fix potholes (which were crazy out of control), he had to go up and down the street and convince his neighbors to chip in to fix them. He said it was a lot of fun trying to convince the old folks living on social security.

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    Lifer burnham's Avatar
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    Re: What is a "Private Way" in MA?

    I work for a municipal department in MA, and work on some private ways. They're usually maintained by the association, and it's usually a cluster fuck. The larger the association, the more people tend to not get along.

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  9. #9
    Posting Freak Gecko's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by whynot View Post
    A friend is looking at a house on a "Private Way" -- how is that different from a public way? . . . I searched MGL and came back with many hits on "private way" but I haven't so far found a legal definition of private way.
    Blacks Law is a good starting point. Whatever the "way" is (as set forth in the granting document on the land records) it is privately owned, not publicly. The difference is that the local or state gov't isn't responsible for the care and maintenance of the "way." Who is responsible, and in what proportions, is (likely) set forth in the granting document on the land records ... though I have seen some that were merely verbal agreements between neighbors that ultimately ended in years of litigation when a home is sold and the new neighbors feel their share is disproportionate to their use. Anyway, I digress ... your statement that the house is on a "Private Way" suggests a private driveway, a driveway that services multiple other homes. They aren't usually owned by "associations," but can be depending on the size of the development the "way" serves. The bigger the development, the more cost effective an association can become ... but for two to ten lots, its just usually just an agreement on the land records that "runs with the land" (as opposed to the individual owners). Usually, when listing a property, good real estate brokers will know this is a potential issue and will ask for the document that created the "way" to quell any fears up front. There are those "other" real estate agents that know there may be a legal issue(s) with the "way" and don't want to chase people away from the listing so they just say "oh its a private way" and gloss over it. In CT, I've represented people buying homes in those situations, as well as having been a home buyer in similar situations where agreements were vague or non existent. So, to answer your question, the legal definition will be of minimal help to your buddy other than knowing its private vs. public ... to get a true understanding of what the "private way" is vis--vis the lot he is looking at you need to read the the granting document on the land records and any subsequent amendments thereto.

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    Angry Gumball RandyO's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by Gecko View Post
    ..though I have seen some that were merely verbal agreements between neighbors that ultimately ended in years of litigation when a home is sold.
    I recently worked on a property that my client had granted an easement to a landlocked lot (that had another legal way in, over a mile long) all well and good, land locked owner transferred land to his son, my former client, gated the road, written recorded easement specifically did not include heirs & assigns, I remember it, when I read the language 20 years ago, and questioned my former client, and he told me, I wanna know if the new owners are assholes or not, before they go thru my land, they have another way in, thru the old girl scout camp. Just one of those things about a survey job, that you don't forget.

    well, my former client, thinks the son is a jerk, next thing I know, I got lawyers from both sides wanting copies of my old survey, for precise location, and any documents I might have, both lawyers local, that I have worked with dozens of times, and even used personally as well. Gate is open now, less than two miles from my house, so I drive past regularly, I think they settled it monetarily, I'm glad the lawyers kept me out, except the initial phone calls,

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    Posting Freak Gecko's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by RandyO View Post
    I recently worked on a property that my client had granted an easement to a landlocked lot (that had another legal way in, over a mile long) all well and good, land locked owner transferred land to his son, my former client, gated the road, written recorded easement specifically did not include heirs & assigns, I remember it, when I read the language 20 years ago, and questioned my former client, and he told me, I wanna know if the new owners are assholes or not, before they go thru my land, they have another way in, thru the old girl scout camp. Just one of those things about a survey job, that you don't forget.

    well, my former client, thinks the son is a jerk, next thing I know, I got lawyers from both sides wanting copies of my old survey, for precise location, and any documents I might have, both lawyers local, that I have worked with dozens of times, and even used personally as well. Gate is open now, less than two miles from my house, so I drive past regularly, I think they settled it monetarily, I'm glad the lawyers kept me out, except the initial phone calls,
    Absolutely. I've been involved in very similar matters, on both sides. Each interesting in their own right. One thing for sure, talismanic language is particularly important in instruments of conveyances. In a legally precise manner, mean what you say and say what you mean. Next to marital dissolution, land disputes between neighbors can be some of the most acrimonious matters.

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    Lifer joeswamp's Avatar
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    Re: What is a "Private Way" in MA?

    This stuff can get pretty messy. In my town we're building a rail trail, and the town originally encountered a bunch of resistance from abutting residents. The legal status of the land was pretty interesting.

    When the railroad was put in (~1840s), the land was mostly farmers fields. The railroad bought about 2/3 of their land, and the rest they got easements for. About 50 years later, the farmer fields got broken up into house lots, where the lot boundaries were defined as "abutting the railroad boundary" or something like that.

    Then around 1960 the railroad was torn out and the land was sold to the power company to string wires. Then a couple of years ago, the town got permission from the power company to put a trail in, and some residents tried to block it legally.

    So for the land that the railroad owned, there's no issue. But about 1/3 of the original RR land was just easements through the original farmers fields. Since the modern property lots abut the easements, who owns that RR land now? Descendants of the 1840s farmers?

    They eventually came to a settlement, but I thought it was pretty interesting because suddenly there was a bunch of land that technically nobody owned.

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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by Gecko View Post
    Absolutely. I've been involved in very similar matters, on both sides. Each interesting in their own right. One thing for sure, talismanic language is particularly important in instruments of conveyances. In a legally precise manner, mean what you say and say what you mean. Next to marital dissolution, land disputes between neighbors can be some of the most acrimonious matters.
    I find that most disputes come down to a clash of lifestyles. and that the escalation in costs to litigate, have turned to a much cheaper way to get at your neighbor, Turn em in for a wetland violation, doesn't matter if there is even any wetlands on the property, wetlands bureau sends them a letter of deficiency, then they have to hire a wetland scientists to prove no violations all done at the expense of the other guy and the state

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    Lifer BSR6's Avatar
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    Re: What is a "Private Way" in MA?

    I'm going through this now with a family camp we have on a lake which is on a private way. In our case, over 35% of the town's tax revenue comes from homes on roads that are defined as "private ways". This is the figure they provided at the town meeting. Due to the high percentage of tax payers living on roads under this definition, the town has maintained them for almost 40 years. Last fall the town had a change of heart and decided they will not plow our maintain any roads classified as private.

    In a nutshell...For 8 grand a year I get police and fire protection. Given it's a 3-season home I can't send my kids to school there because it's not a permanent residence (although I'm still looking into this) Further fueling my rage over the issue is that we just got re-assessed at almost 500K when there are three comps on the lake almost identical to ours (3-season, same size, same amount of bedrooms, land, and frontage) that all sold for just under 300K in the past year.

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    Rust never sleeps. whynot's Avatar
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    Re: What is a "Private Way" in MA?

    ^^ Holy Crap!

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    Re: What is a "Private Way" in MA?

    What state/area is this camp house at?

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  17. #17
    Lifer
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    Re: What is a "Private Way" in MA?

    My town is filled with little private way pockets that the town assigned decades ago, including my own street. They screwed up though as they had been maintaining and plowing the roads as if they were public, which they really were for all purposes. Then about 10 years back they decided to enforce the private aspect of them and stopped all services. A few bad accidents in the snow later and many lawsuits and they are back to servicing them as before. What got them in court was they had always been maintaining it as a public road and using public funds so they had to continue doing so. It also came out in court that the town was listing roads as private on its own to save money on troublesome areas, like mine because i live at the top of a massive hill. It was also determined that emergency services needed the roads in good condition because so many people lived off them.
    Everything is still listed as private but the town keeps them in good shape, although it takes longer than usual for repairs to be made. We as townsfokk have vowed to never use our own money to make repairs as that would set presidence and the town would make use of that.

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  18. #18
    Rust never sleeps. whynot's Avatar
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    Re: What is a "Private Way" in MA?

    ^^ Headaches. The potential liabilities ... hmmm ...

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    Senior Member MHenry600's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by BSR6 View Post
    I'm going through this now with a family camp we have on a lake which is on a private way. In our case, over 35% of the town's tax revenue comes from homes on roads that are defined as "private ways". This is the figure they provided at the town meeting. Due to the high percentage of tax payers living on roads under this definition, the town has maintained them for almost 40 years. Last fall the town had a change of heart and decided they will not plow our maintain any roads classified as private.

    In a nutshell...For 8 grand a year I get police and fire protection. Given it's a 3-season home I can't send my kids to school there because it's not a permanent residence (although I'm still looking into this) Further fueling my rage over the issue is that we just got re-assessed at almost 500K when there are three comps on the lake almost identical to ours (3-season, same size, same amount of bedrooms, land, and frontage) that all sold for just under 300K in the past year.
    Sounds like your camp is in NH....

    This came up the year we moved into our place in Moultonborough. The law was brought up that the town is not obligated to maintain (plow in winter) private roads. If they do want to plow them or maintain in any way, they must have a public town meeting and be voted/agreed on. That's what Moultonborough did, and continued to plow the numerous private roads they had already been doing (including mine). The town does not perform any other maintenance in any way. Ditches/drainage, grading, potholes... all our own issues.

    Might be worth it to check if you can get all of those tax payers on private roads to approach the town for the same type of meeting.

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  20. #20
    Lifer
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by Gecko View Post
    Whatever the "way" is (as set forth in the granting document on the land records) it is privately owned, not publicly. The difference is that the local or state gov't isn't responsible for the care and maintenance of the "way." Who is responsible, and in what proportions, is (likely) set forth in the granting document on the land records ... though I have seen some that were merely verbal agreements between neighbors that ultimately ended in years of litigation when a home is sold and the new neighbors feel their share is disproportionate to their use. Anyway, I digress ... your statement that the house is on a "Private Way" suggests a private driveway, a driveway that services multiple other homes. They aren't usually owned by "associations," but can be depending on the size of the development the "way" serves.
    Is a private way different from a private road? I thought they were essentially interchangeable. If there's a term for a road that is privately owned yet the general public is always allowed to use it, then I can see how one is different from the other. But it sounds like you're saying a private way is the same as private road?

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    Angry Gumball RandyO's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by aldend123 View Post
    Is a private way different from a private road? I thought they were essentially interchangeable. If there's a term for a road that is privately owned yet the general public is always allowed to use it, then I can see how one is different from the other. But it sounds like you're saying a private way is the same as private road?
    a private way could be road, but a parking lot at a shopping center, is also a private way

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    Posting Freak Gecko's Avatar
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    Re: What is a "Private Way" in MA?

    Quote Originally Posted by RandyO View Post
    A private way could be road, but a parking lot at a shopping center, is also a private way
    Yup. My response was limited to op's original post.

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  23. #23
    Posting Freak OneCheekRider's Avatar
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    Re: What is a "Private Way" in MA?

    I grew up on a private road that was gravel. The good news is I made a good income as a kid plowing the street and most driveways with the family lawn tractor as the city would not touch it. The bad news is once a year everyone pitched in to regrade and re-gravel it. Every year my dad would present a plan to pave it as it would be more cost effective in the long run and raise property values. No one ever wanted to "invest" in paving it. There was and still is always a neighbor complaining about upkeep or refusing to pay money bc they use it less or for whatever reason. My folks have been there 33 years now, some neighbors over 40 years. I don't think I want to live on a private road, at least not a dirt or gravel one.

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