Background
The Hummingbird Lane Subdivision in Westford, Massachusetts was developed by William and Lindsey Campbell. Before the Miropolskys purchased their home at 1 Hummingbird Lane, an earlier owner of the land created a “Declaration of Reservation of Easements and Roadways and Common Driveways” that established a fifty-foot-wide access and utility easement running across the Miropolsky property to serve the two other lots in the subdivision. The declaration was drafted to protect the Miropolskys’ parcel (as the servient estate) from disruption during the exercise of those easement rights. Among its terms, paragraph 2 required the owners of the “Remaining Land” — the Campbells and the Buccis — to complete any improvements to the Access Easement Area within twelve months of breaking ground and to do so in a workmanlike manner minimizing disturbance.
The Campbells began subdivision construction in August 2018. The work was not completed until July 2021, nearly three years after commencement and well past the twelve-month deadline. The Miropolskys filed suit in the Superior Court in September 2019 to enforce the declaration. After a three-week trial, a jury found in favor of the Miropolskys on their breach of easement claim, awarding $12,450, and rejected the Campbells’ breach of easement counterclaim. The Miropolskys then petitioned for attorney’s fees under the indemnification provision of paragraph 2 of the declaration, which stated that the owners of the Remaining Land agreed to “defend, indemnify and hold harmless the owner of the [Miropolsky property] for all costs, losses, expenses and attorney’s fees associated with any claim of damage to personal property, injury or death to persons resulting from the exercise of the easements granted herein and for entry upon and activities performed within the Access Easement Area.”
The Superior Court denied the fee petition, finding that “the indemnification clause does not apply to first party claims like this one.” The Miropolskys appealed, arguing that the “all costs . . . attorney’s fees” language was broad enough to encompass their direct breach-of-easement claim against the Campbells.
The Court’s Holding
The Appeals Court (Vuono, Neyman & Sacks, JJ.) affirmed the denial of attorney’s fees. The court began with the foundational principle of Massachusetts fee law: the “American Rule” provides that successful litigants cannot recover attorney’s fees and expenses in the absence of a statute, court rule, or contractual provision that is “clear and unambiguous.” While parties may contract out of the American Rule, the contractual exception requires language that unambiguously establishes the right to fee shifting in the relevant type of claim.
The court applied a fact-intensive interpretive analysis rather than any default presumption against indemnitors or indemnitees. It concluded that the paragraph 2 indemnification clause, read in the context of the declaration as a whole, was not intended to cover direct claims between the parties to the declaration. The language — “any claim of damage to personal property, injury or death to persons resulting from the exercise of the easements . . . and for entry upon and activities performed within the Access Easement Area” — is most naturally read to address third-party claims arising from activities on the easement, such as a contractor or visitor injured during construction work. Reading the clause to apply to direct disputes between the Miropolskys and the Campbells would produce absurd results: a party who won a lawsuit could still be required to indemnify the losing party for the loser’s own attorney’s fees.
The court was also persuaded by the structure of the declaration itself. Paragraph 9 separately granted the owners of the servient estate the “usual legal and equitable remedies . . . to recover damages” in the event of a violation. If the parties had intended to shift attorney’s fees in direct enforcement disputes, the natural place for that provision would have been paragraph 9, not the easement-activity indemnification clause in paragraph 2. The court cited Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 220 (2018), as an example of courts limiting indemnity provisions to third-party claims when a separate direct-claim enforcement mechanism exists.
Key Takeaways
- Massachusetts follows the American Rule: attorney’s fees are not recoverable by a prevailing party absent a statute, court rule, or contractual provision that is clear and unambiguous. Winning a lawsuit does not itself create a right to fees.
- An indemnification clause in an easement declaration or similar instrument is not automatically read to cover direct claims between the parties to that instrument. Courts interpret each clause based on its language and the document as a whole.
- Language indemnifying a party for “all costs . . . attorney’s fees associated with any claim” is insufficient to authorize fee shifting in a direct action if the clause’s context — activities on the easement, third-party entry — signals that third-party claims were the intended target.
- If a declaration has a separate enforcement provision granting “usual legal and equitable remedies,” that separation signals that fee shifting in direct disputes was not intended to be provided through the indemnification clause.
- Drafters who want explicit fee shifting in direct enforcement actions between parties to a declaration, easement, or covenant should include that right explicitly in the enforcement and remedy section, not rely on boilerplate indemnification language.
Why It Matters
Attorney’s fee disputes in real estate litigation are high-stakes: a fee award can dwarf the underlying damages, and the prospect of fee liability shapes settlement dynamics from the outset. Miropolsky is a reminder that the “all costs and attorney’s fees” language that appears routinely in easement and HOA declarations does not guarantee fee recovery in a direct dispute between neighboring property owners. The critical question is whether the declaration was structured so that the indemnification provision was designed to protect against third-party claims — the norm — or whether it unambiguously extended to the parties’ own litigation with each other.
For real estate counsel drafting subdivision declarations, condominium documents, or shared-driveway agreements: if your client wants contractual fee shifting in the event of a direct enforcement dispute, say so expressly in the enforcement provision. A general indemnification clause that mentions “all costs and attorney’s fees” in the context of easement activities will not carry the weight. And for litigants on the receiving end of a fee petition in a direct dispute, the structure and internal logic of the governing instrument — not just the literal breadth of the indemnification language — may be decisive.