Massachusetts

Recreational Use/Recreational Trespass Laws

M.G.L.A. c. 21 17C

§ 17C. Public use of land for recreational, conservation, scientific educational and other purposes; landowner's liability limited; exception

(a) Any person having an interest in land including the structures, buildings, and equipment attached to the land, including without limitation, wetlands, rivers, streams, ponds, lakes, and other bodies of water, who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefore, or who leases such land for said purposes to the commonwealth or any political subdivision thereof or to any nonprofit corporation, trust or association, shall not be liable for personal injuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of willful, wanton, or reckless conduct by such person. Such permission shall not confer upon any member of the public using said land, including without limitation a minor, the status of an invitee or licensee to whom any duty would be owed by said person.

(b) The liability of any person who imposes a charge or fee for the use of his land by the public for the purposes described in subsection (a) shall not be limited by any provision of this section. The term “person” as used in this section shall be deemed to include the person having an interest in the land, his agent, manager, or licensee and shall include without limitation, any governmental body, agency or instrumentality, nonprofit corporation, trust or association, and any director, officer, trustee, member, employee or agent thereof. A contribution or other voluntary payment not required to be made to use such land shall not be considered a charge or fee within the meaning of this section.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Statute: Title – M.G.L.A. Ch. 59, § 2A (Real Property Classifications); M.G.L.A. Ch. 61 (Classification and Taxation of Forest Lands and Forest Products); M.G.L.A. Ch. 61A (Assessment and Taxation of Agricultural and Horticultural Land); M.G.L.A. Ch. 61B (Classification and Taxation of Recreational Land)
http://www.mass.gov/legis/laws/mgl/gl-pt1-toc.htm

Method of Assessment: Use value based on classification for agriculture, horticulture and forest land.

Application: Yes, burden on owner (Forest Land - M.G.L.A. Ch. 61, § 2, Agricultural/Horticultural - M.G.L.A. Ch. 61A, § 6, Recreational - M.G.L.A. Ch. 61B, § 3).

Plan Requirements: Application for Forest Land Application must be accompanied by a forest management plan - M.G.L.A. Ch. 61, § 2. Land can be classified as horticultural if devoted to forest products under a forest management plan. M.G.L.A. Ch. 61A, § 2.

Penalties: M.G.L.A. Ch. 61, § 6. Conveyance tax on forest production land sold for other use shall be subject to a conveyance tax applicable to the total sales price of that land, which tax shall be in addition to taxes that may be imposed under any other law. The conveyance tax shall be assessed on only that portion of land whose use has changed.

Current Use Taxation for open-space land: 

Statute: M.G.L.A. 61B §§ 1-18. Open Space and Recreational Land.

Purpose of Assessment: N/A

Method of Assessment: Open space lands are Class 2 lands. Land not otherwise categorized (as residential or commercial), or taxable under Ch. 61, 61A, or 61B (agricultural, forestry, and recreational lands), or under permanent conservation restriction, and not used for income but in open and natural condition and contributing to the enjoyment and benefit of the public may be categorized as open space land and assessed at fair cash value as open space. M.G.L.A. 59 § 2A.

Eligibility Requirements

Application: Burden on owner (Forest Land - M.G.L.A. 61, § 2, Agricultural/ Horticultural - M.G.L.A. 61A, § 6, Recreational - M.G.L.A. 61B, § 3).

Renewal: M.G.L.A. 61A, § 6; owners of recreational must apply by October 1 of each year to the board of assessors in each city/town to be eligible for valuation. M.G.L.A. 61B, § 3.

Area Requirements: Open space and recreational lands must be five contiguous acres or greater or meet other specific requirements.

Unique or Functional Characteristics

“Open space” is treated as a category of current use-eligible land and valued at current use fair cash value. Recreational lands are the functional equivalent of the typical “open space” designation.

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Tax incentive specifically for providing access: 

Massachusetts does provide a tax incentive that specifically addresses access, however it is not mandatory to receive current use valuation for open space land. Land enrolled in the Ch. 61B program must fit within wither the "Open Space" or "Recreation" category. Only the recreation category requires public access. "Open Space" is considered, “Land retained in a substantially natural, wild, or open condition; land retained in a landscaped or pasture condition; or managed forest under a state-approved forest management plan. “Recreation' is considered “Land that is available for recreational purposes – so long as they do not significantly interfere with the environmental benefits of the land – which include hiking, camping, nature study and observation, boating, golfing, horseback riding, hunting, fishing, skiing, swimming, picnicking, private noncommercial flying, hang gliding, archery, and target shooting. Land under this category must be open either to the public or to members of a nonprofit organization, though landowners can charge a fee for this service.”

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Tax Incentive when land is subject to Conservation Easement: 

Massachusetts has no tax incentives for land subject to conservation easements.

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Income Tax: 

Massachusetts has a tax credit for the donation of land or conservation easements.

Statute: Administration of Government –62 § 6(p).

Program: The state secretary of environmental affairs must determine that the land donation is in the public interest for natural resources, including but not limited to recreational opportunities. The credit for state income tax is worth up to 50% of the appraised fair market value, and cannot exceed $50,000 per year. The credit may be carried over for no more than 10 years. The state is limited to grant no more than $2,000,000 annually. This initiative does not take effect until January 1, 2011.

Enacted: 2009

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Hunter Access Program: 

No programs classified as “state administrated walk-in hunter access programs” were identified in this state via general internet search. However, for more accurate information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

Seich v. Town of Canton 426 Mass 84 (1997)

-Recreational use statute applies equally to publicly and privately owned land.
-Term “land,” as used in recreational use statute, includes indoor areas.