Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the April 10, 2013 mailing of "Constructive Notice":

Do Security Cameras Obstruct Easements?

In what appears to be an appellate case of first impression anywhere in the nation, the Supreme Judicial Court of Maine has determined that surveillance cameras monitoring a private pathway do not impair the use of the easement.

Muther owned a subdivision lot that was subject to an easement for pedestrian beach access. The other subdivision lot owners enjoyed the easement rights over the walkway. Muther believed that trespassers were also using the access easement. She installed video surveillance cameras on her own property to record activity over the right of way. Some of the other subdivision lot owners filed an action for a declaratory judgment and to enjoin Muther from “obstructing their easement rights.” The trial court concluded that “the presence of surveillance cameras will unreasonably interfere with the [other subdivision] owners’ use of the easement.”

The Supreme Judicial Court reiterated the black-letter rule that a servient owner may not materially impair or unreasonably interfere with the use of the right of way. In addition, the Court noted that “this principle is further limited to application only within the bounds of the easement.” The Court then concluded that the placement of security cameras “does not, in any way, impair or interfere with the rights of access... . The defendants ... may engage in reasonable measures to provide security and surveillance of any part of their property and certainly may monitor uses of the easement... . [U]nobtrusive, stationary video cameras do not intrude on the easement in any way.” Flaherty, et al. v. Muther, et al., 2013 ME 39 (April 2, 2013).


This is the second time the case has reached the SJC. The first appeal focused on other issues concerning the creation and scope of the easement, along with identifying the benefited parties. In the earlier appeal, the SJC vacated a trial court order to remove the cameras and remanded “for factual and legal determinations related to the reasonableness of the surveillance cameras.” Remand was called for because “although any psychological impediment created by the cameras may be modest given the prevalence of video surveillance in contemporary society, the reasonableness of the cameras cannot be determined” without further proceedings. Upon remand, however, none of the parties submitted additional evidence and the issue was decided as a matter of law.