February 13, 2014 Article

More Flexible Easement Relocations Post-M.P.M. Builders Case

The decision has provided useful tools for solving real estate disputes in Massachusetts

by Nicholas P. Shapiro

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In the eight years since the Massachusetts Supreme Judicial Court’s (SJC) decision to allow more flexible relocation of easements, such adjustments have proven at times to be useful tools for solving real estate disputes. Although case law interpreting the SJC’s decision in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), has illuminated some facets of how the decision is being used and implemented, a number of challenging, unresolved issues leave considerable uncertainty for practitioners seeking to advise clients on easement relocation.

In M.P.M. Builders, the SJC adopted Section 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which abrogates the existing principle at common law that both the dominant and servient estate owners must agree on changes to the location of the right of way. Instead, Section 4.8(3) takes a more practical and flexible approach to regulating property rights and allows the owner of the servient estate “to make reasonable changes” to the location of an easement “to permit normal use or development of the servient estate.” In adopting Section 4.8(3), however, Massachusetts is in a small minority of jurisdictions, including Maryland, New York, Colorado, South Dakota, and Nebraska, that allow unilateral relocation of easements.  Other states, such as Illinois and Kentucky, allow servient estate owners to make some unilateral changes to easements but do not allow complete relocations. South Carolina allows for only the relocation of implied easements by necessity.  

The changes adopted by the court in M.P.M. make sense for several reasons. First, allowing the servient estate holder to relocate an easement (1) “maximizes the over-all property utility by increasing the value of the servient estate without diminishing the value of the [easement],” (2) minimizes the burden caused by the “easement by reducing the risk that the easement will prevent future beneficial development of the servient estate,” and (3) encourages “the use of easements.” Second, this change generally brings the relocation of easements into greater accord with this area of the law in Massachusetts. The previous common law rule was an outlier in relation to other relevant principles, such as the rule that “the owner of real estate may make any and all beneficial uses of his property consistent with the easement.” Thus, under the prior rules, there was the odd result that the owner of the property could make all changes to his property not inconsistent with the easement, except for moving its location. Third, the change preserves the difference between an easement in and full ownership of real estate because “[a] rule that permits the easement holder to prevent any reasonable changes in the location of an easement would render an access easement virtually a possessory interest rather than what it is, merely a right of way.”

The new right of a property owner to relocate an easement unilaterally is not absolute. Section 4.8(3) itself places many restrictions on that right: The property owner must bear the expense of the relocation, the relocation can only be made “to permit normal use or development” of the servient estate, and any relocation is subject to the criteria found in subsections (a)–(c), intended to preserve the utility of the easement. In addition to these conditions, the Supreme Judicial Court also requires the servient property owner seek a decree from a court of competent jurisdiction before relocating the easement.

In the years since M.P.M, there have been a handful of decisions that further fleshed out the contours of these restrictions on easement relocations. A selection of these decisions are profiled here.

Expansions to the Easement Relocation Rule

In Carlin v. Cohen, 73 Mass. App. Ct. 106 (2008), the Massachusetts Appeals Court held that building a significantly larger house constitutes “normal use or development” justifying a relocation, and that diminution in the value of the dominant estate is irrelevant under M.P.M. and Section 4.8(3). The appeals court has otherwise held that M.P.M. applies to prescriptive easements and to implied easements by necessity. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 296 (2005) (prescriptive easement); Trenz v. Town of Norwell, 68 Mass. App. Ct. 271, 280 (2007) (implied easement). These holdings can be particularly useful in a real estate practice because they provide flexibility to property owners in defending claims for prescriptive or implied easements, which allows a defending party to both assert that an easement does not exist and to ask the court to locate an easement in a more convenient location if such an easement is determined to exist.

Of perhaps greatest significance in expanding the reach of M.P.M., the Massachusetts Land Court has issued two decisions holding property owners may unilaterally narrow or diminish the size of the easement area burdening her property. Hogan v. Gordon, 19 LCR 497, 502–503 (Oct. 7, 2011) (Misc. Case No. 376292) (Sands, J.) affm’d at 82 Mass. App. Ct. 1122 (2012); Nora, LLC v. Gelch, 19 LCR 331, 335–336 (July 12, 2011) (Misc. Case No. 319094) (Sands, J.). This advancement has huge practical potential, as rights of way are frequently not built out to the dimensions depicted on the underlying plans of record or the full linear extent of those rights of way are, practically, unnecessary. This provides a potent alternative to various claims for extinguishment of portions of easement areas, by abandonment, adverse use, or estoppel, all of which can be quite difficult to prove at trial.

Limitations on Easement Relocation

While the foregoing decisions have broadened the application of M.P.M., some cases have explicated the limitations of the rights conferred by that decision. In an unpublished decision, a panel of the Massachusetts Appeals Court held that “unclean hands” can bar a relocation claim. See Strecker v. Tavares, Memorandum and Order pursuant to Rule 1:28, No. 09-P-731, 2010 WL 2306132, *3–4 (Mass. App. Ct.) (June 10, 2010). For example, if the servient estate owner induces the easement holder to detrimentally change position based on the present location of the easement, the servient estate owner may be precluded from relocating the easement under M.P.M.

In another case, the Massachusetts Land Court held M.P.M. does not allow the relocation of a public easement. The land court noted that “nowhere, in allowing for judicially-sanctioned relocation of an easement did the Supreme Judicial Court purport to allow the servient estate, in effect, to extinguish an easement when a nearby public way will serve the same purpose as the deeded right of way. M.P.M. Builders simply does not allow a servient owner to unencumber his property in this fashion.” Danforth Village, LLC v. CSE Framingham, LLC, 2011 WL 940502, *6 (Mass. Land Court) (March 14, 2011) (Grossman, J.) affm’d at 81 Mass. App. Ct. 1129 (2012).

Two other decisions from the Massachusetts Land Court have underscored the fact that meeting the requirements for an easement relocation has nothing to do with whether that relocation complies with local zoning. In both of these cases, provisions of the local zoning bylaws required special permit relief for the development of a common driveway. Thus, before initiating a relocation action, practitioners must consider the zoning implications of such a claim, even where the conditions otherwise required for relocation have been met. See Pasquine v. Newhall, 17 LCR 569 (Aug. 31, 2009) (Misc. Case No. 329770) (Trombly, J.); Reynolds v. Baker, 2008 WL 5394919, *5 (Mass. Land Ct.) (Dec. 29, 2008 ) (Scheier, C.J.).

Remaining Questions about Easement Relocation

Many unanswered questions about easement relocation in Massachusetts remain:

  • What happens when the right of way extends over multiple servient estates? 
  • What if relocation of the easement on one servient estate obviates the need for the balance of the right of way?  
  • Will those other servient estates be permitted to become effectively unburdened by the relocation of the easement upon the other?  
  • What happens when there is a dispute between dominant and servient estate owners with respect to how the right of way will be improved, with one preferring, for instance, crushed stone and the other asphalt? Should the servient estate owner, as the party bearing the expense, have the first choice over such decisions?
  • What would happen if a servient estate owner relocated the easement in a manner consistent with the criteria of Section 4.8(3) and sought a declaration after the fact, in violation of the Supreme Judicial Court’s commandment to go to court first? Would a trial judge truly order the restoration of the original easement, only to allow for its relocation all over again? 

These types of questions are a natural result of the “flexible” and less formalistic M.P.M. rule. This type of more malleable approach may lead to more litigation and greater cost, but the resultant answers may provide even greater flexibility for those who can afford to litigate them.

In sum, while it cannot always be successfully invoked, and many questions remain unanswered, the first eight years of M.P.M.’s application has demonstrated the unquestionable usefulness of the change in the law affected by that decision for real estate litigation practitioners.

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