Blog Post  Paper Streets

Pictured above: A 1994 recorded plan depicting two paper streets in Pittsfield, MA. Retrieved from the Registry of Deeds for Berkshire County (Middle) (Document #2012).

What is a paper street?

“Why did the chicken cross the paper street?”

Wait, what is a paper street?

A paper street is defined as a "street shown on a recorded plan but never built on the ground." (Shapiro v. Burton, 23 Mass. App. Ct. 327, 328, n. 3 [1987])

“Paper streets can be a developer’s nightmare and an abutter’s dream. Few encumbrances have such a profound impact on the future development of real property as a paper street.” (Understanding paper streets, Chicago Title Insurance Company, p.1).

Explained simply, owners of property abutting a street own the property up to the center line of the street, and have the right to access their property along the whole street; i.e., travel rights, or “easement” rights. This means that, in the case of paper streets, even though the street has never been built, an abutting property owner cannot build anything on the “street” (even if it just looks like a field or a forest) without permission from all of the property owners affected along the paper street. This is true even if the paper street is obstructed or impassable, and also if there are other public or private ways leading to the property.

Establishing easement rights

Easement rights in a paper street can be established through a grant contained in a deed, by statute, estoppel, prescription, implication, or necessity. 

Deeded grants: A section of a deed that serves as the official, written declaration of the transfer of property or a specific right from the current owner (grantor) to the new party (grantee). A grant may not always transfer full ownership. A deed can also contain a specific right, like an easement.

Statute: Municipalities may create a street by passing an ordinance or bylaw.

Estoppel: If a way is clearly indicated on a plan of a property, then the abutting owner has easement rights by estoppel (meaning that no one can later claim the right does not exist). 

Prescription: In the case of paper streets, this means the “acquisition of title to a thing (especially an intangible thing such as the use of real property) by open and continuous possession over a statutory period.” (Black’s Law Dictionary, Deluxe 11^th ed., 2019). In Massachusetts the prescribed period is 20 years.

Implication: This often happens when property is broken up and part of it is sold. When a parcel is sold and there was a prior use (usually open and obvious) of an access to it, and the intention by the grantor was obviously to continue using that access, the grantor may be given an easement by implication. It does not have to be absolutely necessary for the grantor to use this route to access their property, as there may be another access; however, the easement is implied by the grantor’s continuous prior habit of using it. (Easements by implication do not have to be on a recorded plan.)

Necessity: One type of easement by implication is an easement by necessity. If a property owner sells to someone adjoining property, but that sale cuts off all access to the original owner’s property, then that owner may get an easement by “necessity”; this is based on the supposedly common-sense principle that no one would sell property in such a way that would deny themselves access to their own property.

Dissolving easement rights

There are various ways to dissolve the easement rights on a paper street. An easement of travel in a paper street may only be extinguished or terminated by:

• abandonment (not just non-use; the owner must show through acts a clear intention to relinquish the easement);
• prescription (through adverse possession of that land for a period of 20 years);
• release or grant (the owner of the easement may stipulate in a document that the easement is no longer in force, or is granted to another);
• merger (of two properties under a single owner);
• frustration of purpose (i.e., the purpose for which the easement was created no longer exists);
• mortgage foreclosure (if the mortgage precedes creation of the easement, as is often the case in subdivisions where a large property may be mortgaged before it is subdivided and paper streets are drawn on the plan, the easement is extinguished at foreclosure, unless the easement holder can get the mortgage holder to sign an agreement that allows the easement to survive a foreclosure);
• eminent domain (the government takes the property for public use); or
• a decree of the Land Court (one can file a complaint in the Land Court to remove a paper street).

(Understanding paper streets, pp.3-4).

Benefits to paper streets

In addition to the benefit of travel rights, there are some other benefits to having a paper street. MGL c. 187, § 5 provides that owners along a private way have the right to install pipes and conduits for electricity, water, telephone, and sewer, at least if the private way is not statutorily created, laid out, and constructed by a municipality or public authority. The existence of a paper street created by its appearance on a recorded plan (rather than by statute) may be beneficial to people who would like to install such services, even where no physical road exists.

Paper streets may also be used for subdivision purposes, with some qualifications. A subdivided lot with frontage on a paper street that is laid out (i.e., designed, planned, but not yet constructed) as a public way may be entitled to “Approval Not Required” plans. This allows for a simpler and faster process of dividing up the land compared to the formal subdivision process and planning board approval.

Helpful resources

Online

• Easements & rights of way, public and private roads by Irene Del Bono, Esq. (2016)
  Provides an introduction to easements. Presented at the Massachusetts Land Conservation Conference 2H on April 2, 2016.
• Massachusetts law about roads and streets, Mass. Trial Court Law Libraries.
  A compilation of laws, regulations, caselaw, and secondary web and print sources.
• Massachusetts streets and ways for surveyors by F. Sydney Smithers (2011)
• Understanding paper streets, Chicago Title Insurance Company.
  Discusses people's rights regarding paper streets, their creation, parameters, and termination in Massachusetts, with a focus on easements.

Print

• Rules of paper roads & ancient ways & how they impact title by James S. Jurgens, MCLE New England, 2022.

This may be one time when you can tell your kids (or chickens) it is safe to play in the street.

Written and illustrated by Gary Smith.