Many homes in Massachusetts subdivisions sit on roads the town has never formally accepted. Residents drive on them every day, but when it is time to repair the pavement, plow the snow, run a new utility line or sell a lot, a surprisingly hard question comes up: who actually owns the land under the road? Often the answer turns on a Massachusetts statute most homeowners have never heard of, the Derelict Fee Statute.
Owning the road versus having the right to use it
Two different property interests are involved:
- The fee is ownership of the land itself, the soil under the pavement.
- An easement is the right to use the road, for example to travel over it to reach your home.
In most subdivisions, every lot owner has easement rights over the subdivision roads shown on the recorded plan. The harder question is who owns the fee: the original developer, the abutting homeowners or someone else.
The Derelict Fee Statute
Developers often sold off every lot but never deeded the roads themselves, leaving strips of land owned by a company that may no longer exist. The Massachusetts Legislature addressed this with General Laws chapter 183, section 58, which took effect in 1972.
In general terms, the statute provides that a deed or other instrument passing title to land that abuts a way, public or private, also passes whatever fee interest the grantor owned in that way, typically to the centerline of the road. It applies unless the deed contains an express exception or reservation keeping the road. Merely describing the lot as bounded "by the sideline" of the street is not enough to keep the road out of the deed.
The way does not have to be built yet. A road that is shown and designated on a recorded plan, but never constructed, can still qualify.
Important limits
The statute is powerful, but it has boundaries that courts continue to define:
- The grantor must have owned the fee. The statute passes only what the seller actually owned. In 2026 the Massachusetts Appeals Court held that the statute did not apply where no fee interest of the grantor in the way was conveyed.
- It is about ownership, not use rights. Courts have held that the statute addresses fee ownership only. Owning the fee to the centerline does not cut off other owners' easements to travel over the road.
- It does not enlarge your lot for zoning. The Appeals Court has held that the road area passed by the statute does not count toward minimum lot area under zoning rules.
- The deed language matters. An express reservation of the road by the developer changes the result entirely, so every deed in the chain should be checked.
Why it matters to homeowners
- Maintenance and plowing. On an unaccepted private way, the town may have limited obligations, and questions of who must maintain the road can depend on ownership and easements.
- Town acceptance. If residents want the town to accept the road as a public way, ownership and title questions usually need to be resolved.
- Utilities and improvements. Installing lines, drainage or driveways may require permission from whoever owns the fee.
- Buying and selling. Title examiners and lenders may raise questions about road ownership and access during a sale or refinance.
How to find out who owns your road
Start with your deed and the recorded subdivision plan at the Worcester District Registry of Deeds. From there, a title review traces the chain of deeds back to the developer, looks for any express reservation of the roads, and checks whether the developer or a successor ever conveyed the roads separately.
Road ownership questions often affect an entire neighborhood at once. Lake Shore Legal handles title research and real estate matters throughout southern Worcester County, including private way questions in Dudley, Webster and surrounding towns. Contact us if your subdivision road raises questions.
This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.